There’s little doubt that if the Obama administration ever managed to bring NSA whistle-blower Edward Snowden before a jury on American soil, the unfolding drama would quickly become the trial of the new century.
But despite all of its bluster, is the administration really eager and ready for such an undertaking? The answer, surprisingly, may be “no,” and for one simple reason—the trial of the century could also quickly devolve into the embarrassment of the century.
To be sure, from a technical standpoint, the Justice Department has a very strong case. Snowden has been charged with three very serious federal felonies carrying a potential combined 30 year prison sentence: one count of theft of government property and two violations of the 1917 Espionage Act for transmitting classified defense and intelligence information about NSA spying to journalists Glenn Greenwald, then of The Guardian newspaper, Barton Gellman of The Washington Post and Laura Poitras.
According to many legal experts, including Greenwald, Snowden’s motives for leaking secret documents and computer files are legally irrelevant under the Espionage Act, to which formal whistle-blower protections don’t apply. As in the 2012 prosecution of former CIA analyst John Kiriakou for disclosing classified information to the press about the waterboarding of al-Qaida prisoners and last year’s Chelsea Manning court-martial, Snowden’s judge may exclude such evidence from his trial. As a result, Snowden’s jury may never get to consider what would otherwise be his central defense—that he acted not to aid the nation’s enemies but to expose government wrongs and protect our constitutional rights.
Ordinarily, when the odds are so strongly stacked in their favor, prosecutors smell blood in the water and aim for maximum punishment. But last week, Attorney General Eric Holder, the country’s top prosecutor, held out the possibility of engaging in plea negotiations with Snowden should the fugitive return, albeit still insisting that Snowden “broke the law … caused harm to our national security and has to be held accountable for his actions.”
Unlike the Manning trial, which took place in a cloistered military base, or the prosecution of Kiriakou and other Obama-era whistle-blowers, which received little day-to-day press attention, a Snowden trial would be a unique 24/7 news sensation, even if live cameras were barred from the courtroom and spectators were excluded from some hearings involving as-yet undisclosed classified material.
As the administration well knows, we live in a media-driven culture fascinated by the lurid details of big-stakes criminal prosecutions and political scandals—witness the sky-high TV ratings achieved by the HLN cable network for its broadcast of the Jodi Arias murder trial in Arizona and the current saturation coverage of New Jersey Gov. Chris Christie’s “bridge-gate” debacle. As a pure media circus, the prosecution of Snowden would far eclipse them all, attaining the status of a national obsession in the fashion of the O.J. Simpson case in the mid-’90s.
But it’s not just the circus atmosphere of a Snowden trial that the administration would want to avoid and that, I suspect, has Holder talking about plea negotiations. It’s what the trial and the circus would reveal about the overreach of the modern American surveillance state and the injustice of prosecuting the man credited by so many with bringing that overreach to light.
Even if Snowden’s judge excluded evidence of motive during the trial and Snowden chose not to take the stand, the Justice Department would still have to prove in open court exactly what NSA surveillance files and computer programs Snowden pilfered and disclosed. Commentators on all the major networks would wax late into the night parsing each day’s revelations, debating the lawfulness and necessity of the NSA’s operations as never before, invoking the negative findings of two executive-branch review panels and re-examining the legal opinion written in December by U.S. District Judge Richard Leon, who concluded that the NSA’s dragnet collection of telephone metadata was tactically ineffective and almost certainly unconstitutional.
Every day the trial continued, the prosecution also would have to contend with the possibility Snowden supporters somewhere in the world would release new NSA documents, deploying a pressure tactic that some observers have dubbed “graymail.” And at sentencing, as he exercised his right of “allocution,” we finally would get to hear from Snowden himself, not on the issue of guilt or innocence but on the question of punishment to explain why he deserves leniency and should not be sent to prison for standing up to the surveillance state.
For the administration, this is a nightmare scenario. Rather than jailing Snowden, a far better resolution—one reportedly under review within the NSA and fully endorsed by the editorial board of The New York Times—would be some form of amnesty or clemency, consistent with the president’s pardon power under Article II, Section II of the Constitution.
To date, of course, the president has been extremely stingy with pardons, prompting some pundits to quip that a Thanksgiving turkey is more likely to receive forgiveness from Obama than a deserving criminal defendant. Since assuming office in 2008, Obama has granted a mere 61 acts of clemency and pardon, compared with 200 dispensed by George W. Bush and 450 issued by Bill Clinton.
But with the recent announcement that Russia intends to extend Snowden’s asylum status, the chances are good that come next Thanksgiving Snowden will still be in Moscow rather than on a plane back to Washington. Between now and then, Obama could spare himself the embarrassment of the century and simply do the right thing by taking the threat of prison for Snowden off the table. What happens thereafter—whether a full-blown amnesty or some kind of plea bargain is offered—should be the only remaining item on the legal agenda.