POLITICS
02/07/2014 04:49 pm ET Updated Feb 07, 2014

Fox News Leaker's Lawyer Claims System Is Rigged To Unfairly Target Low-Level Officials

Mark Wilson via Getty Images

WASHINGTON -- A lawyer for a former State Department official who pleaded guilty on Friday to making an unauthorized disclosure of national defense information to a Fox News reporter said his client's case shows the nation's system for prosecuting leaks "is broken and terribly unfair."

Stephen Jin-Woo Kim, 46, pleaded guilty in connection with leaking information about how U.S. intelligence officials thought North Korea would react to heightened sanctions. If a judge signs off on an agreement Kim reached with federal prosecutors, he'll serve 13 months in prison.

"As this prosecution demonstrates, we will not waver in our commitment to pursuing and holding accountable government officials who blatantly disregard their obligations to protect our nation’s most highly guarded secrets," Ron Machen, U.S. Attorney for the District of Columbia, said in a statement.

Kim's case attracted significant media attention after it was revealed that the Justice Department treated the Fox News reporter, James Rosen, as a co-conspirator in order to gain access to his emails. The public uproar over the case, as well as concern over DOJ's handling of phone records belonging to the Associated Press in a separate case, led DOJ to revise its media guidelines.

Abbe David Lowell, a lawyer representing Kim, noted that the new media guidelines, which would have prevented "improperly obtained evidence" from being used, were not applied in the case. While it is unlikely that DOJ was actually planning to prosecute Rosen, officials told a judge that they were investigating him as a "co-conspirator" so they could obtain his emails without his knowledge. Attorney General Eric Holder signed off on Rosen's search warrant, but later said he regretted doing so.

Lowell also said that Kim was being singled out, while higher-ranking government officials were able to disclose national security information with impunity. That's the same argument another former government official made when pleading guilty in connection with a leak about a foiled bomb plot, insisting that more powerful officials had disclosed information as well.

"Lower-level employees like Mr. Kim are prosecuted because they are easier targets or often lack the resources or political connections to fight back," Lowell said. "High-level employees leak classified information to forward their agenda or to make an administration look good with impunity. In fact, in this case, news reports from the same day demonstrate that Stephen was not the only government employee discussing the topic at issue. Stephen may have told the reporter what the reporter already knew from others, but Stephen was the only one charged."

Lowell's full statement is reprinted below.

On June 11, 2009, Stephen Kim did what so many government officials do every day in Washington, DC: he talked to a reporter. Regrettably, the topic and some of the information that he discussed with a reporter was also contained in a classified report. Accordingly, Stephen pled guilty today to one count of disclosing this classified information to someone not authorized to receive it. Stephen takes full responsibility for his actions. But there is so much more to say about this case:

1) Stephen did not reveal any intelligence “sources” or “methods.” The information at issue was less sensitive or surprising than much of what we read in the newspaper every day. At the time of the disclosure and during the case, many former government officials and media commentators noted that the information was nothing significant, that much of it was in public sources, and that the prosecution of this information was another example of the “over-classification” of information by the government. A great deal of harmless information is “classified,” even when it is widely available to the public.

2) Stephen did not steal any information. He did not provide any documents or electronic data to anyone. He did not pay for or receive payment for his actions. All that he did was have conversations with a particular reporter on a particular day -- yet he faced more than 15 years in jail for this conduct.

3) Stephen’s case demonstrates that our system for prosecuting “leaks” in this country is broken and terribly unfair. Lower-level employees like Mr. Kim are prosecuted because they are easier targets or often lack the resources or political connections to fight back. High-level employees leak classified information to forward their agenda or to make an administration look good with impunity. In fact, in this case, news reports from the same day demonstrate that Stephen was not the only government employee discussing the topic at issue. Stephen may have told the reporter what the reporter already knew from others, but Stephen was the only one charged.

4) “Leak” cases are prosecuted under the Espionage Act, a 100-year-old law with crushing penalties that was never intended to apply to conversations between a government employee and a news reporter. The Act and its penalties are designed to punish traitors and spies – not State Department analysts answering questions from the media about their area of expertise. Stephen faced more than a decade in jail for the type of public discussion of foreign policy issues that ought to be encouraged. This Administration and Congress should address these problems, as they undermine the basic fairness of our criminal justice system.

5) Stephen’s was the case that revealed that the Obama Administration had targeted the media as criminal “co-conspirators” and obtained private email and cell phone records of reporters. As a result, Attorney General Holder issued new guidelines for investigating so-called "leak" cases. Yet, Stephen did not receive any of the benefits of these reforms (DOJ not using improperly obtained evidence in criminal cases and DOJ pursuing non-criminal resolutions of cases against government employees) because the government refused to apply them in his case.

6) Faced with the draconian penalties of the Espionage Act, the tremendous resources that the federal government devoted to his case (a half-dozen prosecutors and a dozen FBI agents), and the prospect of a lengthy trial in today’s highly-charged climate of mass disclosures, Stephen decided to take responsibility for his actions and move forward with his life.

Stephen, who has provided years of important and valued public service, appreciates all of the support and kind words that he has received from the community. His life has been in limbo for four years – with his plea today, he hopes to find a path back to some normalcy.

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