‘Greymail’ Charge Gains Traction in CIA Leak Case

(CN) - Jeffrey Sterling cannot testify about his prior CIA assignments, a federal judge ruled, apparently agreeing with the government claim that its former officer is trying to "greymail" the government as he fights charges of leaking top-secret documents to a New York Times reporter.

According to the government, Sterling proposed to testify about unrelated classified activity on which he worked as a CIA officer. Sterling claims that this testimony is necessary to put his career at the CIA in its proper context, according to the brief.

Prosecutors labeled Sterling's proposal an attempt to "greymail" the government. "Greymail" is a defense tactic, the goal of which is to request so many classified documents that the government rejects the request. Then the defense may argue that they cannot get a fair trial without these records.

"The defendant does not specify how each and every classified activity listed in the defendant's proffered testimony is relevant to any of the charged crimes," according to the brief. "Instead, the defendant rests on broad and sweeping generalizations regarding the purported relevance of his testimony."

Prosecutors had little patience with Sterling's stated reason for needing these documents. "Putting his career into 'context' has marginal, if any, probative value, and introducing evidence of other, wholly unrelated classified activity will confuse and mislead the jury and waste time over irrelevant matters," the brief said.

The government contended that, if putting his career in context was Sterling's main interest, he would accept its proposed evidentiary substitutions.

But Sterling's real motive allegedly belies that intent.

"The defendant's argument really amounts to a claim that because he is the defendant, he is somehow entitled to testify about whatever he wants while on the stand, and the Rules of Evidence do not apply to him," the government concluded. "Such an argument is 'greymail' in its purest form and effectively self-immunizes any defendant charged with having disclosed classified information from prosecution."

Two days later, U.S. District Judge Leonie Brinkema granted the government's prior motion to strike Sterling's proposed statements as to specific details about prior assignments.

"The defendant's testimony pertaining to his employment with the CIA will be confined to the subject matter discussed during the hearing," Brinkema said.

The judge ordered the government to submit its motion regarding protective measures for witnesses and prepare substitutions for three classified words the defendant seeks to use in his defense.

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