Leak Case Collapse Raises Questions about Prosecutions, and the Prosecutor

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The high-profile prosecution of former National Security Agency official Thomas Drake mostly collapsed on Thursday in a huge embarrassment for the Justice Department, but also for the prosecutor of the case, William Welch II. And it is not the first time Welch has been at the center of a blunder. The development further highlights questions about why President Obama’ Justice Department is so aggressively pursuing alleged government leakers and why Welch is taking the lead on some of those high-profile cases.

Yes, this is the same William Welch that ran the botched case against former Alaska Republican Sen. Ted Stevens. Federal judge Emmet Sullivan in April 2009 dismissed Stevens’ ethics conviction because of Welch’s prosecutors’ behavior on that case and said that in 25 years on the bench he had “never seen mishandling and misconduct” like that.

Welch was forced to step down from his post as head of the department’s public integrity section because of the scandalous collapse of the case against Stevens. But he’s popped up again in at least two efforts to imprison government leakers — or whistle-blowers.

In this case, Welch sought to throw Drake in prison for up to 35 years with felony charges under the Espionage Act for leaking information to the Baltimore Sun. Drake was worried that the NSA was dumping a $3 million dollar surveillance program in favor of a similar, $1 billion-dollar contractor-run program. He thought it was a waste of money, according to Drake’s supporters.

Welch backtracked in this prosecution after the judge in the Drake case ruled recently that for the case against Drake to move forward, the government would have to show some classified information to the jury. Under an agreement, Drake will now plead guilty to a misdemeanor and serve no jail time.

The Espionage Act, first drafted in 1917, was originally intended to keep battlefield plans secret, and attorneys have long been skeptical of the use the law to go after alleged government leakers — which the Obama administration seems obsessed with. The administration has pressed charges against five defendants suspected of leaking classified information. Previous administrations have pursued similar charges only three times in the last 40 years.

And Welch is overseeing at least one of those other cases, against former CIA official Jeffrey Sterling. Welch claims Sterling leaked to New York Times reporter James Risen information on how the CIA more than a decade ago tried to give the Iranians faulty nuclear bomb blueprints. The plan backfired. Risen describes that boondoggle in his 2006 book “State of War.”

In that case, Welch has issued the third government subpoena to compel the Risen to reveal his sources. The first one expired and a judge quashed the second one late last year during the grand jury phase of the case against Sterling. But Welch is after Risen again as that case goes to court.

None of this answers the strange question about why the Obama White House is so obsessed with leaks and why they would want Welch to take the lead on trying to criminalize whistle blowing.