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William Welch: Obama Administration’s Point Man to Stop Leaks
The prosecutor has been called a tenacious and tough-as-nails lawyer, but also overzealous. By Shane Harris
Comments () | Published July 21, 2011
Illustration by Koren Shadmi

On June 10, one of the biggest cases in the Obama administration’s campaign to stanch leaks of sensitive government information to the press collapsed when the Justice Department dropped espionage charges against Thomas Drake, a former senior official at the National Security Agency. Prosecutors accused Drake, who held high-level security clearances, of illegally downloading classified information about NSA technology from the agency’s computer networks, and then keeping it at his home with the intent to disclose it to a Baltimore Sun reporter. But just three days before the trial was scheduled to begin, the lead federal prosecutor, William M. Welch II, told the judge that he couldn’t proceed without revealing details in court about classified systems that NSA uses to eavesdrop on global communications. The government dropped 10 felony counts against Drake, and he pleaded guilty to a misdemeanor offense—exceeding his authorized use of an NSA computer.The original charges carried the possibility of 35 years in prison; Drake was given a year's probation and 240 hours of community service.

But apparently another factor was also influencing the government’s decision to drop its years-long pursuit of Drake. Experts on secrecy law noted that the case against him was tenuous from the beginning and that it had unraveled in large part because the prosecution had overreached in treating Drake as an enemy of the United States. “It seems clear that the Obama Administration misjudged the merits of its case against Drake, pursuing minor infractions with disproportionate zeal,” said Steven Aftergood, a secrecy expert at the Federation of American Scientists who closely followed the case. Drake admitted that he spoke to the Sun reporter on several occasions about a failed technology program at the agency that had wasted hundreds of millions of dollars, but he said that he never divulged any classified information. He had also been participating with an internal Pentagon investigation into NSA management. Yet Drake was indicted under the Espionage Age, a 94-year-old law historically used against spies and traitors.

No one had pursued Drake more tenaciously than Welch, a 47-year-old litigator who has spent his entire career in the Justice Department. Welch has earned a reputation among fellow prosecutors and defense attorneys as a tough-as-nails, determined litigator. But many of those same people also say he is often overly aggressive in deciding which cases to bring and how to prosecute them, and that his ambition has sometimes blinded him to the weaknesses in his cases. “There’s a fine line between being zealous and overly zealous,” says one defense attorney who has lost to Welch in court. “He crossed that line on several occasions.”

Welch is now the administration’s point man in its historic anti-leaks campaign. He is prosecuting a former CIA officer, Jeffrey Sterling, and he has subpoenaed James Risen, a Pulitzer Prize–winning New York Times reporter, to testify about whether Sterling was the source for the journalist’s book State of War, which revealed that the CIA may have botched classified operations against Iran. A federal judge is expected to rule soon on whether Risen will have to testify, and her decision could have broad implications for freedom of the press and journalists’ ability to protect the identity of their confidential sources. But while the cases now in Welch’s portfolio are among the Justice Department’s most high-profile, chasing leakers isn’t what he’s best known for: Currently, Welch is under criminal investigation for his handling of the prosecution of the late Alaska senator Ted Stevens.

Welch oversaw the Stevens corruption trial as chief of the Justice Department’s Public Integrity Section. Stevens was convicted in October 2008 for failing to report gifts on his financial-disclosure forms. But the case fell apart five weeks later when an FBI agent who’d helped investigate the senator alleged ethical and legal violations on the part of federal prosecutors.

An investigation revealed that the government’s lawyers had failed to turn over information to Stevens’s attorneys that could have aided in his defense. In April 2009, attorney general Eric Holder dropped the charges against Stevens, and the judge in the case ordered a criminal contempt-of-court investigation into Welch and five other lawyers. The Justice Department’s Office of Professional Responsibility also began an ethics probe. Neither inquiry has been concluded. And while it has been reported that Welch merely oversaw the team of lawyers on the case, new information suggests he was directly involved in decisions about what information to turn over to Stevens’s attorneys and what to withhold.

Welch stepped down as the Public Integrity Section chief in October 2009 and moved back to Springfield, Massachusetts, where he’d worked as an assistant US Attorney before coming to Washington. It could have been the end of his career in government. But one month later, Lanny Breuer, head of the Justice Department’s Criminal Division, put Welch in charge of some of the most politically sensitive of the government’s leaks cases.

Breuer, a prominent Washington attorney who once defended former national-security adviser Sandy Berger against charges that he’d stolen classified documents, looks to be Welch’s biggest fan. “Bill is absolutely tenacious,” Breuer says. “He’ll follow every fact and research every legal issue, and he will be absolutely dispassionate in his conclusions.”

Breuer sees Welch’s doggedness as an asset in the Obama administration’s efforts to stop national-security leaks, which rests on a complicated—some say dubious—interpretation of the Espionage Act. The administration has used the law to prosecute five people in leak-related cases, more than all previous administrations combined.

Welch has spent his entire career at the Justice Department. Photo by David Molnar, courtesy The Republican (www.masslive.com).

Breuer doesn’t seem bothered that his lead prosecutor is under investigation. “The fact there’s an allegation in and of itself is insufficient” to keep him from prosecuting, Breuer says. “In my mind, it would be absolutely unjust and crazy at this stage not to continue to let Bill Welch be the great prosecutor he is.” Breuer adds, “I’ve grown to very much rely on his judgment, his acumen, his intellect, and his sense of justice, which I think is terrific.”

Welch’s critics paint a different portrait. Lawyers who have battled Welch describe him as a moral absolutist. A “piranha,” one calls him. A man with “tunnel vision,” says another, a “hard ass” who tends to view his targets in the worst possible light.

“He’s a bully,” says Vincent Bongiorni, a defense attorney in Springfield who has lost to Welch. “He’s an ends-justify-the-means kind of guy.”

As adversaries, criminal-defense attorneys and prosecutors don’t always become friends. But they generally respect each other as professionals, trusting that each side has played fair. It’s unusual for defense lawyers to express personal animosity toward their opponent or to question his or her professional integrity.

After the Stevens case imploded, lawyers in Springfield questioned whether Welch’s prosecutorial style had finally gotten the better of him. “No one here was shocked to hear that he might have done something over the line,” says one defense attorney. “I felt like he played very close to the edge for a long time. He had a reputation for going too far in general. I’m shocked he’s still prosecuting.”

***

The Washingtonian reviewed every case that Welch worked on when he was an assistant US Attorney in Springfield, from 1995 until 2006. It was during those years that Welch earned his chops as a prosecutor. His biggest victories were in a string of city corruption cases that became his steppingstone to the Public Integrity Section at Justice.

Most of Welch’s cases in Springfield appear routine. But some raise questions. In three cases, defense attorneys filed motions claiming Welch hadn’t turned over exculpatory evidence, sometimes after a judge had directed him to do so. One attorney accused Welch of mounting a vindictive prosecution against a woman who had refused to cooperate with one of his investigations. One suspected Welch of trying to prevent a witness favorable to the defense from testifying—an allegation that would surface against the prosecution years later in the Stevens case. (None of these complaints resulted in a case’s being overturned.)

Before a criminal trial begins, prosecutors are required to turn over any information they have that helps establish the defendant’s innocence or that undermines the credibility of the government’s witnesses. The rules governing this process flow down from a 1963 Supreme Court case, Brady v. Maryland, which held that suppressing favorable evidence from the accused violates the right to due process.

Pretrial disputes over evidence aren’t uncommon in criminal cases. “A lot of defense lawyers file motions for exculpatory information automatically, in order to obtain as much information as possible,” says Baruch Weiss, who worked for 18 years as a prosecutor in the US Attorneys Office for the Southern District of New York. But when it comes to evidence, US Attorneys are generally trained to follow a simple rule: When in doubt, disclose.

Judging from interviews with defense attorneys and former prosecutors who worked with Welch as well as a review of Welch’s own motions and written responses to his opponents, he often appeared to follow a different rule: Don’t give a defendant more information than you legally have to.

Most of Welch’s harshest critics wouldn’t speak on the record for this story because they said they were likely to face him again in court. Welch wouldn’t grant an interview, either. He grew up in the liberal college town of Northampton, Massachusetts, a world removed from working-class Springfield. His father was a superior-court judge. In 1985, the younger Welch graduated from Princeton, where he played offensive guard on the football team, and a year later he enrolled at the Northwestern University School of Law in Chicago. According to the Republican, Springfield’s local newspaper, Welch “spent every available minute going over to the federal court, watching trials.”

After law school, Welch moved to Washington, where he worked for two years as a trial attorney at the Justice Department’s Tax Division. Then he served his first stint as an assistant US Attorney, in Reno, Nevada, working drug and money-laundering cases. For his work on an 11-month drug trial, he won the Award for Superior Performance from the Executive Office of the US Attorneys. It was the first of three such recognitions over the course of his career. In 1995, Welch went home to Massachusetts, landing in the Springfield branch of the US Attorneys Office, a satellite of the Boston office. In Northampton, according to the local paper, he bought an old Victorian home, which he spent his spare time renovating.

It’s one of the few personal details anyone seems to know about him. Some of those who worked most closely with Welch describe him as a tireless worker who rarely spoke of his life outside of his job. Welch’s former boss, Donald Stern, who was the US Attorney in Massachusetts from 1993 to 2001, worked with the prosecutor on a complex murder case. But Stern says he got to know Welch only “through the lens” of the trial and that Welch was all business. Stern’s successor as US Attorney in Massachusetts, Michael Sullivan, describes Welch as “unemotional” and “unflappable.”

To some, Welch’s early performances in Springfield didn’t suggest an inspiring career ahead. “He was a very wooden prosecutor in court,” says a criminal-defense attorney who watched Welch in his first cases. “He asked stilted questions.” Another defense attorney described Welch as “green, and not that good.”

Welch overcame any rookie inhibitions when he landed a case that made national headlines. In November 1998, Kristen Gilbert, a nurse at the US Veterans Affairs Medical Center in Welch’s hometown of Northampton, was indicted for murdering four of her patients by injecting them with lethal doses of epinephrine, a drug that accelerates the heart rate. Because the crimes were committed on federal property, the government was able to seek a death sentence despite the fact that Massachusetts had abolished its state death-penalty law in 1984. The opening arguments attracted so many observers that the court had to open an overflow room, where the proceedings were shown on video.

In 52 days of testimony, Welch told the story of an unhinged psychopath, who “coldly and quietly moved through the corridors of the VA in a nurse’s uniform, leaving behind her a trail of death and destruction.”

An attorney who followed the proceedings says he was “astonished” by Welch’s transformation from an uninspired courtroom functionary into a magnetic litigator.

Welch was relentless. “He’s the only prosecutor I’ve encountered who I couldn’t outwork,” says David Hoose, who defended Gilbert as well as a Springfield city official Welch later indicted on corruption charges. “Once he sets his sights on someone, he’s on them with everything he’s got.”

Welch, who’s bald and stocky, “hunched forward” in his seat and “bounced his knee to a staccato rhythm, waiting for his turn to speak,” the Republican reported. During the sentencing phase, Welch—who is Catholic and was said to be opposed to capital punishment—gave what the local paper called a “torrid closing argument seeking the death sentence for Gilbert.”

The jury convicted Gilbert of the murders and of trying to kill two more patients but was unable to reach a unanimous decision to execute her. The judge gave her life without parole, calling the decision one of the most difficult in his career.

Welch told the Republican that the Gilbert verdict was likely the greatest victory of his career, though he was hesitant to see it that way. “I have to think there’s sort of another big one out there to look forward to,” he said.

***

Welch’s cases made good copy. In October 2000, the Republican revealed that a federal task force investigating organized crime had been alerted to possible influence-peddling, bribery, and racketeering in Springfield. Information on wiretaps pointed to members of Mayor Michael Albano’s administration.

A spate of investigations and prosecutions followed, casting Welch in the role of Springfield’s Eliot Ness taking on crooked politicians, their cronies, and their alleged mob associates. The allegations included payroll-padding, trading sex for official jobs, and trumping up bonuses for appointed officials. One 50-count indictment accused the former director of a homeless shelter of stealing televisions, mattresses, and refrigerators to outfit his $700,000 vacation home.

“Political corruption was endemic,” says William Kettlewell, a local defense attorney. “Springfield was one of these sleepy little backwaters that needed shaking up.”

Welch racked up more than 30 convictions in his six-year anti-corruption campaign. Michael Sullivan, the former US Attorney in Massachusetts, says he was surprised that Springfield was bringing more corruption cases than Boston. He sent corruption lawyers from Boston to the Springfield office, where Welch taught them the “techniques and tools he used,” Sullivan says.

But Welch wasn’t long for Springfield. In August 2006, as he wrapped up a dozen guilty pleas in a probe of the local housing authority, he set his eyes on Washington. He took a temporary assignment as acting chief of the Public Integrity Section, one of the top jobs in the Justice Department’s Criminal Division. The section prosecutes some of the country’s biggest cases of alleged crimes by politicians and government officials. Welch was now at the apex of his career.

The Public Integrity Section had gone more than a year without a permanent chief. The previous head, Noel Hillman, had stepped down when George W. Bush nominated him to become a federal judge. Throughout the 1990s, the Public Integrity Section had earned a reputation for being too timid in bringing cases. But under the Bush administration, the lawyers were told to view themselves as the de facto US Attorney’s office for public corruption, according to former officials. That meant acting more independently, launching their own investigations and bringing more cases to trial.

In that respect, Welch was a good fit. He’d taken on Springfield officials when no one else would, and his investigations were unyielding. In March 2007, seven months after Welch went to Washington, he was named permanent chief. He settled into Washington, buying a rowhouse on Capitol Hill for $700,000.

***

By far the biggest case Welch handled in his new job was the trial of Ted Stevens. But it was preceded by two related corruption trials that, in hindsight, may help to explain why the Stevens case came unglued.

In September 2007, a federal jury in Anchorage convicted former Alaska state representative Pete Kott on bribery, extortion, and conspiracy. Kott had advocated an oil tax being pushed by VECO Corp., an oil-services company, in exchange for money, favors, and the promise of a lobbying job.

The government’s case hinged on conversations that the FBI had recorded in a hotel room in Juneau between Kott and Bill Allen, VECO’s chief executive. Allen had earlier pleaded guilty to bribery and conspiracy and agreed to assist with the federal investigation into state corruption. His testimony would prove decisive in Kott’s trial as well as the trial of Vic Kohring, another state lawmaker.

But in the run-up to the Kott trial, Allen’s story began to fall apart. “Allen is a horrible witness,” Nicholas Marsh, a young attorney in the Public Integrity Section, wrote to Welch and his deputy, Brenda Morris. “No shock there, but he’s been backsliding significantly on us over the past day or two. He now has taken to volunteering, even when not asked, things like ‘Pete Kott was my friend’ and ‘he never extorted me.’ ”

Allen was the government’s star witness, and he was contradicting the heart of its case. That met the textbook definition of exculpatory information. But neither Marsh’s e-mail to Welch nor Allen’s problematic statements were ever shared with Kott and his attorneys.

Marsh went on to write that after a “heart-to-heart” with Allen, he thought they’d managed to get his story straight. “He seemed to get it by the end. I think he’s in a good place right now, but the guy is like mercury on a plate glass window. We won’t know what we’ll get until he takes the stand.”

***

Allen was persuasive enough for the jury in both the Kott and Kohring trials. With two convictions in the bag, Welch’s team, assisted by the US Attorneys Office in Alaska, moved on to Stevens. There, too, Allen was the linchpin.

The senator was accused of failing to report renovation work that Allen and his company had provided for a small home Stevens owned. Members of Congress are required by law to disclose any gifts or services they receive, and the government claimed that the labor and materials had amounted to $250,000.

After Stevens was convicted, an FBI agent named Chad Joy, who’d worked on the Alaska investigations, filed a complaint alleging “possible criminal violations.” Among other things, he said the prosecutors had kept a witness who may have been helpful to Stevens from testifying. It was the first sign something was amiss.

Judge Emmet Sullivan ordered the prosecution team to go through their records and turn over all internal communications pertaining to Joy’s allegations. If prosecutors were holding back information that could be useful to Stevens’s defense, the senator had a right to know. When the prosecutors appeared to be dragging their feet, the judge found Welch, Morris, and two other attorneys in contempt of court. It was as powerful a statement of his dissatisfaction as the judge could send, short of throwing the lawyers in jail. (Welch and Morris are appealing the ruling.)

A contempt citation turned out to be the least of the lawyers’ problems. When the Justice Department assigned a new team to look into the Stevens files, they found new information that turned the case on its head.

At issue was a note that Stevens had written to Allen thanking him for the work on his home and reminding him to send a bill so that he could comply with the Senate’s ethics rules. The note suggested that Stevens had always meant to disclose the home repairs.

At trial, Allen testified that a friend of Stevens’s told him to disregard the note, that the senator was “just covering his ass.” Allen’s revelation blew a hole in Stevens’s defense and helped persuade a jury to convict him.

What the prosecutors hadn’t told Stevens is that in a pretrial interview they had asked Allen about the note and he didn’t mention the conversation about Stevens’s covering his ass. Stevens’s lawyers should have been told about the interview. Had they known that Allen was changing his story, they could have attacked his credibility and knocked out a key pillar of the government’s argument.

The prosecution had so badly botched the case that on April 1, 2009, attorney general Eric Holder announced he was dropping it. For the Justice Department, the discovery of the Allen interview was a political disaster. For Welch and the other attorneys, it was presumably a career-ender, maybe even a crime.

Judge Sullivan appointed a special prosecutor to conduct a criminal-contempt investigation into six of the lawyers—Marsh, Welch, Welch’s deputy Brenda Morris, another attorney from Welch’s section, and two assistant US Attorneys in Alaska. The investigation remains open.

Prompted by the revelations, Kott and Kohring appealed their cases to a federal court in Alaska, which threw out the convictions in March of this year and ordered new trials. It was during the Kott appeal that his lawyer discovered the e-mail Marsh had sent about Allen’s being such a terrible witness.

Marsh and another more junior attorney in the case were exiled to jobs in the Justice Department that kept them out of the courtroom. Anguished over the mark on his career, Marsh hanged himself in the basement of his home in Takoma Park last September. He was 37.

***

Welch remained in his post until October 2009, when he returned to Springfield. His deputy, Brenda Morris, was also allowed to continue trying cases.

It has been widely reported that Welch didn’t participate directly in the Stevens trial, that as section chief he was more of a broad overseer. But a close friend of Marsh’s, who is also an attorney, says that Marsh told him Welch was personally involved in approving decisions about what information to hand over to Stevens and what to withhold—an assertion supported by the existence of the e-mail from Marsh to Welch describing Allen as an unreliable witness in the earlier Alaska cases.

“Some of the biggest issues Welch was involved in were related to Brady material,” says Josh Waxman, referring to the Supreme Court case that set the rules for exculpatory evidence. Waxman, who is a partner in the law firm Akin Gump, says Marsh told him that Welch participated in discussions, gave directions, and “signed off on how things were done.”

Marsh also thought that he and more junior members of the legal team were scrutinized more than their bosses. He worried “he’d be made a fall guy,” Waxman says. Marsh thought he’d be vindicated if the investigation were run fairly but that “people were pointing fingers at him.” Marsh was particularly upset with how Welch behaved. “It bothered Nick that he didn’t take responsibility for decisions he was involved in,” Waxman says.

One theory as to why the Stevens case took such a wrong turn has to do with the unexpectedly fast pace at which the prosecutors had to prepare for trial. They’d been anticipating a span of many months between the indictment and their opening arguments. But Stevens’s lawyer, the famed defense attorney Brendan Sullivan, demanded a trial within 70 days of the indictment. Welch and his colleagues had to move fast, the theory goes, and as a result they might have let some information fall through the cracks.

But in light of all the red flags about Bill Allen—the e-mail from Marsh about his shaky testimony, his contradictory statements about Stevens—it’s difficult to imagine that a team of experienced prosecutors could have been so busy that they simply overlooked glaring problems at the heart of their case. They were the same problems that had surfaced in the Kohring and Kott trials, which began almost a year earlier. Welch and the prosecutors under his supervision weren’t rushed then, yet they failed to turn over information that was under the umbrella of the Brady rules.

***

Welch has taken up the leaks cases with the same zeal as his earlier prosecutions. The cases now in his portfolio stem from investigations begun during the Bush administration, which failed to bring any charges. Welch was brought on to give those cases a fresh set of eyes. He took over the case against Thomas Drake, the ex-NSA official, in November 2009.

Welch’s predecessor had drafted an indictment against Drake on charges of leaking to the Sun, but he never filed it. Welch recrafted the indictment on a comparatively easier charge to prove: willfully retaining classified information. The government claimed that the FBI found classified documents in Drake’s home and on his personal computer. Welch's changing the indictment was a kind of end-run play that would free the government from a significant evidentiary burden.

The Sun ran a series of articles in 2006 exposing a failed technology program that had wasted hundreds of millions of dollars, which embarrassed senior intelligence officials and a large Pentagon contractor. But the articles didn’t jeopardize any classified security operations, nor did they reveal sensitive sources and methods used by US intelligence agencies.

According to multiple sources familiar with the Drake case, the FBI first searched his home in Maryland in November 2007 because he was a suspect in another leak, this one to the New York Times. In 2005, the paper exposed a campaign of secret domestic surveillance by the NSA, which was authorized by President Bush in the weeks after the 9/11 attacks. It was only after agents examined the material they took from Drake’s home that they began to suspect he had been in contact with the reporter from the Sun, about an entirely different matter.

Drake’s claims about waste and abuse at his agency were generally corroborated in a report by the Pentagon’s inspector general. It faulted the NSA for “inefficiently using resources,” and found that it may be building a “less-capable” system for performing it’s national security mission.

“This is just more evidence that the government never should have prosecuted Thomas Drake,” said Danielle Brian, the executive director of the Project on Government Oversight, which obtained the report through the Freedom of Information Act.

Judge Richard Bennett, who presided over the pre-trial motions in the Drake case, had a harsher assessment. At a sentencing hearing last week, the judge said the Justice Department had put Drake through “four years of hell.” It was “unconscionable,” he said, for prosecutors to wait two and a half years to indict Drake after the FBI raided his home, only to drop the charges against him days before the trial began. “It doesn’t pass the smell test.”

The judge asked Welch if he could explain why it took so long to bring charges. The prosecutor said he could not. But he asked Bennett to impose the maximum $50,000 fine on Drake.

The judge, who was visibly angry, noted that Drake had already spent $82,000 in legal fees, and that he was being represented by public defenders because he became indigent. Drake lost a job that paid more than $150,000 a year, along with his eligibility for a federal pension. He would never again work in the intelligence community. Today, Drake is employed as an hourly employee at an Apple store in the Washington area.

The case had led to Drake’s “financial devastation,” Bennett said. He denied Welch’s request for a fine.

***

Welch is now turning to the case of Jeffrey Sterling, a former CIA officer accused of leaking information about covert operations to New York Times reporter James Risen for his 2006 book, State of War. (The case was previously handled by the same prosecutor in charge of Drake’s case.) Risen was also one of two reporters who wrote the Times article on NSA’s warrantless-surveillance campaign. Welch also inherited that investigation, which has shown no signs that it will lead to any charges.

Last April, before Welch indicted Sterling, he subpoenaed Risen to testify about his sources before a grand jury. The first prosecutor had served Risen with a subpoena in 2008, but it expired. Once again, where others had either failed or abandoned the trail, Welch picked it up.

Media subpoenas are rare because they can impinge on a reporter’s ability to gather information in exchange for keeping his sources’ names in confidence. The attorney general must personally approve the subpoenas, and the Justice Department has strict guidelines designed to limit their use. A prosecutor is allowed to compel a journalist’s testimony only when there are no other means of identifying a suspected leaker.

But Welch sought the subpoena against Risen even though he had a suspect in the leak investigation. At the time, a former senior intelligence official told The Washingtonian, “They already know who it is” that leaked—“they” being CIA officials as well as federal prosecutors. This official identified the leaker as someone who had worked for the CIA.

It appeared that Welch didn’t need Risen to testify and that the subpoena violated the Justice Department’s guidelines. In November, Judge Leonie Brinkema, who has presided over some of the government’s most important national-security cases, ruled that the subpoena was superfluous. Prosecutors had “more than enough evidence” to indict Sterling, making Risen’s testimony both unnecessary and a threat to a reporter’s privilege to keep his sources’ identities a secret, the judge wrote.

More from Shane Harris:

Plugging the Leaks

Hacking the Bad Guys

The Justice Department's Top Lawyer

A month after the judge quashed the subpoena, Welch indicted Sterling. Then in late May, Welch subpoenaed Risen again, this time to testify at Sterling’s criminal trial. That set the stage for a major showdown over press freedoms.

In June, Risen filed an affidavit as part of a motion to quash the subpoena against him. He accused the Bush and Obama administrations of targeting him personally because of the secrets he’d exposed and the unflattering stories he’d written. Judge Brinkema is expected to rule on Risen’s motion soon.

***

In all the leaks cases, the Obama administration’s weapon of choice has been the Espionage Act. The statute’s language is notoriously vague. For instance, as currently drafted, the law makes no distinction between the theft of information and the receipt of it. Under a strict reading, spies and traitors are in the same camp as journalists.

Welch says leakers actually do more damage than spies. In a court document arguing that Sterling should be denied bail, Welch wrote, “Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.” A judge denied the prosecution’s request, and Sterling was released pending his trial.

Welch’s penchant for tunnel vision, for seeing a case in the starkest terms, is on display in that argument. But it’s of a piece with the Obama administration’s view as well. Welch is almost certainly not deciding these issues on his own. “There tends to be greater oversight and supervision that the cases [from headquarters] have to go through before the line attorneys can take them to the grand jury,” says David Debold, who was an assistant US Attorney in Detroit for 17 years and is now with the law firm Gibson Dunn in Washington.

For Welch, the leaks cases offer a path to career redemption. The irony is that the same aggressiveness that got him into trouble is what could save him now. In the administration’s eyes, Welch’s liabilities are an asset.

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