Big Defense Win in Aipac Case, But Beware the Dreaded Footnote

A federal appeals court has handed another serious defeat to the prosecution of two pro-Israel lobbyists accused of trafficking in classified information, though a cryptic footnote could offer some hope to the government.

On Tuesday, the Richmond, Va.-based U.S. Court of Appeals for the Fourth Circuit refused to overturn a lower judge’s ruling that the two American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, had the right to use two classified documents as part of their defense.

In an unusual pre-trial appeal, the Justice Department argued that the records, an FBI report and a document describing the briefing Israeli officials gave the U.S. about Palestinian arms smuggling were irrelevant to the case, in large part because Rosen and Weissman are not alleged to have seen the documents.

The three-judge appeals court panel said it had doubts about the relevance of the Israeli briefing document, but was bound to defer to the trial judge, T.S. Ellis III.

“We may not substitute our judgment for that of the trial court, which has been immersed in these proceedings for many months and has far more familiarity with the matter
than we do,” Judge Robert King wrote, joined by Judges Roger Gregory and Dennis Shedd.

Portions of the appeals court’s opinion were deleted, apparently because they contained classified information.

Last week, in a blow to the prosecution, Ellis ruled that Rosen and Weissman have the right to call a former federal classification czar, J. William Leonard, as a witness. Leonard is expected to testify that over-classification is pervasive in the federal government and that the information Rosen and Weissman allegedly received may not have been classified at all.

However, in a footnote Tuesday, the appeals court delivered what may have been a brush-back pitch to Ellis.

In a key ruling in 2006, Ellis found that, to win a conviction, prosecutors had to show Rosen and Weissman knew what they were doing could harm the U.S. or help an enemy. The judge also said the government would have to show Rosen and Weissman knew what they were doing was illegal.

The Justice Department asked the appeals court to overturn that order, but the court ruled last year that it was not ripe for review. The three appeals judges stood by that position Tuesday, but added this in a footnote: “We are nevertheless concerned by the potential that the…order imposes an additional burden on the prosecution not mandated by the governing statute.”

The judges wrote that the law under which Rosen and Weissman were charged, the Espionage Act, “must be applied according to its provisions, as any other course could result in erroneous evidentiary rulings or jury instructions.”

The judicial aside has no direct impact on Ellis’s decision, though it could persuade him to revisit the matter. If he did, the government might not like the ultimate outcome. Ellis’s ruling suggests he believes that, without the additional requirements on the prosecution, the law would be unconstitutional.

A defense attorney for Rosen, Abbe Lowell, hailed the long-awaited decision from the appeals court.

“In addition to arguing that this is a misdirected case from the get-go, the defendants have stated they ought to have the right to use relevant classified information in their defense. The government has fought that and now both Judge Ellis and the court of appeals have agreed with the defense,” Lowell said. “We’re most anxious to get to trial.”

Lowell declined to comment on the potentially troublesome footnote.

A lawyer for Weissman, John Nassikas, declined to comment.

The Justice Department could seek to appeal the decision to the full bench of the 4th Circuit, but officials were noncommittal yesterday.

“We are reviewing the decision and will respond in court,” Peter Carr, a spokesman for the prosecutors, said.

Rosen and Weissman were indicted in 2005 on charges they obtained classified information from government officials and passed it to journalists, diplomats and others. The pair pled not guilty. A trial is set for April, but lawyers involved in the case have said they expected it to be delayed again.

The defense team is hopeful that President Obama’s appointees at the Justice Department will review the case and decide to drop it, especially in light of the recent rulings. However, such a decision could cause an outcry among career prosecutors and FBI agents eager to proceed with the prosecution of the two ex-lobbyists.