The government’s espionage case against Thomas Drake, a former National Security Agency employee, appears to be crumbling, with prosecutors offering Drake a plea bargain involving vastly reduced charges.
Sources close to the case, which I wrote about for The New Yorker, say that the government has been scrambling to find a way to avoid the trial now scheduled for next Monday in the federal court in Baltimore. At the moment, Drake faces ten felony charges, and if convicted could serve thirty-five years in prison. But in heated discussions, the government has offered Drake the possibility of pleading to a misdemeanor, with no jail time. He would have to agree, however, that he willfully retained classified national-security materials, taken while he worked at the N.S.A. Drake, who has consistently denied that he misappropriated any classified material, has so far refused even the vastly reduced plea offer from the government—apparently to the frustration of both his defense lawyers and the prosecutors. Drake is refusing, so far, to plead guilty to any wrongdoing, arguing that it is a lie, and he won’t compromise the truth. (Laura Sweeney, a Justice Department spokesman, said she couldn’t comment on the developments because the case is pending.)
The government’s willingness to bargain down the charges from ten felony counts to a single misdemeanor suggests that the case is teetering. The bargaining follows a series of setbacks for the government. The government had wanted to substitute summaries for some of its evidence, which it argued was too sensitive, from a national-security standpoint, to show. The judge, however, ruled that Drake had to be able to refer the jury to the specific details in order to fully defend himself. As Politico’s Josh Gerstein wrote on Monday, the lead federal prosecutor in the case, William Welch, then decided to withdraw all references to that classified material, undercutting his own case.
At the moment, it is unclear if the government will be able to find a plea that Drake will accept. If it can’t, the trial will move forward, as scheduled—unless, in what would be a major defeat for the Department of Justice, the case collapses entirely.
