NSA contractor faces 10-year sentence in first Espionage Act charge under Trump

DoJ says in criminal complaint Reality Winner admitted to leaking document that revealed Russian hacking of US voting systems manufacturer before election

Reality Winner, the woman alleged to have leaked classified information about Russian interference in the US election, could face up to 10 years in prison if the Trump administration pursues its complaint that she violated the Espionage Act.

The 25-year-old allegedly shared documents that reveal Russian intelligence agents hacked a US voting systems manufacturer in the weeks immediately before the 2016 presidential election.

The government said in its criminal complaint that Winner admitted to the charge in a conversation with the FBI on 3 June, but lawyers have cautioned that cannot be seen as a definitive admission of guilt, because the information is being relayed by the government.

In the criminal complaint against Winner, the justice department said it was charging her under the Espionage Act, following the model used aggressively by Barack Obama in his administration’s attempts to shut down whistleblowers.

The complaint says she “improperly removed classified intelligence reporting, which contained classified national defense information”. A single charge under the Espionage Act could attract a 10-year sentence. The government’s formal indictment will show the final charges against her.

Under the Obama administration, the US government expanded its use of the Espionage Act, prosecuting more government sources for leaks than all the previous administrations combined.

Hina Shamsi, director of the ACLU’s national security project, told the Guardian that leaks were a “vital source for information in our democracy” and that prosecuting leakers resulted in a “less informed public and less accountable government”.

“It would be deeply problematic if this prosecution marks the beginning of a Trump administration crackdown on leaks to the press,” Shamsi said.

Free-speech advocates, including the ACLU, said the use of the Espionage Act to prosecute Winner could be a chilling opening salvo in the new administration’s potential war on whistleblowers.

Edward Snowden, the NSA whistleblower who leaked a trove of files on US surveillance programs to the Guardian in 2013, condemned the government for prosecuting Winner under the act, which prevents Winner from offering a defense based on a reason for why she acted, such as a desire to serve the public interest.

“Winner is accused of serving as a journalistic source for a leading American news outlet about a matter of critical public importance,” Snowden said in a statement.

Asked about the case, Sean Spicer, the White House press secretary, said he did not know if Trump was aware of the arrest and declined to comment on a continuing investigation. “That being said, I think that you’ve heard the president very clearly talk about the concern that he has about unauthorised disclosures of classified and sensitive information and the threat that they can pose to national security,” he told reporters. “So while I don’t want to comment on any specific case or allegation, I think it is important to note that any disclosure of classified or sensitive information can clearly threaten our national security.”

Kathleen McClellan, who serves as national security and human rights deputy director for the Whistleblower and Source Protection Program, said it was “wildly inappropriate” to use the Espionage Act for cases like this.

“There are plenty of regulations and other laws that you could use to punish someone for leaking,” said McClellan, who has represented the whistleblowers Thomas Drake and John Kiriakou. “It’s clear that the Trump administration wants to punish leakers as severely, if not more severely, than Obama did.”

One of the best known people to have been charged with violating the Espionage Act under Obama is Chelsea Manning, who was found guilty on six counts of violating the act after leaking diplomatic cables to WikiLeaks.

She was sentenced to 35 years in military prison, though Obama commuted her sentence just before leaving office and she is now free.

Though Winner’s leak was small – apparently confined to one document – compared to the trove of more than 250,000 diplomatic cables leaked by Manning or the documents Snowden shared with the Guardian and other news organizations, prosecution is about the quality, not quantity, of the documents shared.

Nancy Hollander, Manning’s attorney, emphasized that the Espionage Act prevented Winner from arguing the disclosures were in the public interest. “When people know something they seriously and genuinely believe the public has a right to know, and the government is keeping from the public, they have no recourse,” she said.

“It’s very difficult for her to defend herself since she can’t ever explain, until such time that she’s sentenced, why she did what she did, what her motive was,” Hollander said.

“I don’t know what her motive was, but assuming it was she believed that the public needed to know this and that it was being kept from them, she won’t have a chance to say that.”

Winner has a string of anti-Trump sentiments on her Facebook page – she called him a “piece of shit” in February – but that information does not prove her intent for leaking the information.

Winner is the first person to be accused of violating the Espionage Act for a leak under the Trump administration. Trump’s White House has been plagued by frequent internal leaks, but the president has also expressed support for leaks.

Trump said “I love WikiLeaks” at a campaign rally in October 2016 after the organization leaked Hillary Clinton’s emails.

“There’s leaking every day,” said Hollander. “Winner’s one that they’ve charged because they don’t like what she leaked.”