Arnold Porter partner Baruch Weiss confirmed this week that he recruited Whitley, now a partner at Baker Donelson in Atlanta, to support and augment the work of Bell & Brigham, a small Augusta, Georgia, firm that initially took on Winner's defense and will remain on the case.
He also confirmed that First Look Media owner of The Intercept, the publication Winner is accused of leaking to will pay Whitley's legal fees and those of the other Baker Donelson lawyers he brings with him. The Intercept is an online news outlet originally founded to publish reports based on reams of classified materials provided by Edward Snowden, a former contractor with the U.S. National Security Agency. Winner, a 25-year-old former U.S. Air Force veteran, was working for NSA contractor Pluribus International Corp. in Augusta.
Winner was charged with espionage and has been jailed without bail since federal authorities accused her of leaking a classified document to The Intercept, which served as the basis for a published story detailing specific efforts on multiple fronts by Russian intelligence to compromise state election systems across the U.S. in the runup to the 2016 presidential election. The online article was accompanied by a redacted version of the document. Winner has pleaded not guilty to the charges.
'An Easy Call'
Weiss said he worked for Whitley after President George W. Bush appointed the Atlanta attorney in 2003 to be the newly minted Homeland Security Department's first general counsel in the aftermath of the Sept. 11, 2001, terrorist attacks on New York. Weiss, who spent 18 years as a federal prosecutor in the Southern District of New York, served as acting deputy general counsel and associate general counsel under Whitley's command. Whitley now chairs Baker Donelson's Government Enforcement and Investigations Group.
"It's kind of an easy call," Weiss said of his decision to recommend to Winner that she add Whitley, with his long history of government service, to her team. Winner's prosecution, he noted, is being handled by the U.S. attorney's office in Augusta in tandem with lawyers from the U.S. Justice Department's National Security division in Washington.
"You want someone who knows how to appear in federal court in Georgia on a criminal case, who can work with or negotiate with main Justice. We indicated our willingness to fund Joe Whitley if she [Winner] was willing to accept him. She was a resounding 'yes.'"
Why wouldn't you want Joe Whitley on your team in a case like this in Georgia?," Weiss added. "He is an experienced defense attorney, a man of gravitas and stature exactly what this case needs."
Whitley is bringing three other Baker Donelson attorneys with him: former assistant U.S. attorney in New Orleans Matthew Scott Chester, Brett Switzer and Jill McCook, according to federal court papers. They join Bell & Brigham attorneys John Bell Jr. and Titus Nichols who have been representing Winner since her arrest last month.
Whitley has been traveling and unavailable to comment.
Moving Forward
Weiss said that, while he will continue to represent The Intercept, he will also provide legal support to Winner's defense team. "We do have experience in Espionage Act cases, which are not that frequent," he said. "They are litigated very differently from other criminal cases." Such cases also can be "enormously expensive," he said.
Winner's lawyers already are embroiled in a legal brawl with federal prosecutors over what evidence against Winner should be treated as classified, including published news reports that may rely on classified materials, and whether she will even be allowed to review or discuss classified evidence that prosecutors intend to use against her.
As that dispute spilled into court last week, Whitley sought permission from the court to appear on Winner's behalf. Whitley also has served as U.S. attorney for the Middle District of Georgia in Macon as an appointee of Ronald Reagan and as U.S. attorney for the Northern District of Georgia in Atlanta as an appointee of President George H.W. Bush. During the Reagan and Bush administrations, he served as acting associate U.S. attorney general, the department's third-highest post.
On July 11, The Intercept's editor-in-chief, Betsy Reed, announced that First Look Media's Press Freedom Defense Fund would support Winner's defense because, "It is wrong for journalistic sources to be prosecuted under the Espionage Act." The fund also provided $50,000 in matching funds to Stand with Reality, a crowd-funding campaign to provide additional legal support and public awareness.
"As the news outlet Winner is accused of leaking to, The Intercept has a unique perspective on her case and a passionate desire to see her receive a fair trial even though we had no idea who our source was and still have no independent knowledge of the source's identity," Reed wrote.
An FBI agent's affidavit included in the court record on Winner's ongoing prosecution suggested that clues about the identity of the individual who provided the classified document to The Intercept were provided by its own reporter.
While attempting to verify the document at the core of its story on alleged Russian electoral hacking, Reed acknowledged that, "At several points in the editorial process, our practices fell short of the standards to which we hold ourselves for minimizing the risks of source exposure when handling anonymously provided materials. It is clear that we should have taken greater precautions to protect the identity of a source who was anonymous even to us."
