US opposes gag order for Trump sought by Senate intelligence aide in leak probe case
By SPENCER S. HSU | The Washington Post | Published: July 12, 2018
U.S. prosecutors on Thursday urged a judge to reject a defense request for a gag order that would bar federal officials — including President Donald Trump — from commenting about the case of James Wolfe, a former Senate Intelligence Committee staffer charged with lying to the FBI about his contacts with journalists.
Wolfe has pleaded not guilty to three counts of making false statements in a government crackdown on leaks that included the collection of a New York Times reporter's phone and email records.
Wolfe's attorneys had asked U.S. District Judge Ketanji Brown Jackson to issue the order, saying that Trump's near-daily attacks on the integrity of the legal system and pronouncements on cases pending before the courts have been inflammatory and misleading.
Preston Burton and Benjamin Klubes of the Buckley Sandler law firm singled out Trump's remarks to reporters the morning after Wolfe's June 7 arrest, in which he said the Justice Department had "caught . . . a very important leaker," adding, "You cannot leak classified information."
Wolfe is not charged with disclosing classified information, although investigators who interviewed him in December told him that they were probing unauthorized disclosures of classified data to one or more reporters, prosecutors said in court filings.
Wolfe's attorneys also said that Assistant Attorney General John Demers announced that the case concerned "unauthorized disclosure of sensitive and confidential information," when Wolfe's indictment referred only to disclosure of material "not otherwise publicly available."
Prosecutors in a court filing Thursday replied that Demers' and other senior Justice Department officials' statements in a press release fell "well within their responsibilities to discuss the public policy significance" of Wolfe's alleged conduct to advance a government crackdown on leaks.
They said that Trump neither identified Wolfe by name nor suggested he had nonpublic information about the case and that he instead "segued immediately into unrelated general remarks about freedom of the press and leaks of classified information."
The presidents "general comments" to reporters, "isolated and far removed from any trial in this matter, did not present any likelihood of material prejudice to the defendant's right to a fair trial by an impartial jury," Assistant U.S. Attorney Tejpal Chawla of the District wrote for prosecutors.
Imposing a gag order on the president as if he were a member of the prosecution team is unfounded and would ignore long-standing precedent guarding separation of powers between the three branches of government, Chawla wrote, and publicity in the case has not been exceptional or sensational.
Wolfe, a 30-year Senate committee staffer and former Army intelligence officer, retired in May as its security director, with duties that included managing the secure handling, tracking and storage of some of the most highly classified material provided to Congress.
He is charged with lying about his contacts with four reporters and about giving reporters "nonpublic information" about matters before the committee.
Among the allegations is that Wolfe lied about exchanges with a New York Times reporter, Ali Watkins, who previously had been in a romantic relationship with him. Law enforcement officials seized years' worth of Watkins' phone and email records in their investigation of Wolfe.
Jackson set the next hearing in the case for July 26 and arguments on the defense motion between then and Aug. 23. No trial date is set.