The way prosecutors see it, former CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security.
By defense attorneys’ telling, Sterling is a compassionate, hard-working man whose misdeeds have been greatly exaggerated.
Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions. The range of options she has to consider is broad.
Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer. Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.
Neither side has offered a specific recommendation on prison time.
Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.
Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”
But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for.
“Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin &Gitner.
But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different.
“It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches at George Washington University Law School, said of Petraeus’s recent sentence. “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”
Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept.
As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.
Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material.
“There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.
Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison.
Prosecutors argued that those cases, “while serious, did not compromise ongoing, classified intelligence operations.” Of Petraeus, they wrote that the retired general “had given his biographer and paramour — who possessed a security clearance — access to classified information and improperly stored classified information at his residence. None of this classified information was included in his biography, made public in any other way, or disclosed by his biographer to any third parties.”
Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge.
“She knows the difference between specific harm and speculative harm,” Schwager said.
Sterling’s defense attorneys also have asserted that Sterling has already faced significant hardship during a legal process that dragged on far longer than normal. The former CIA officer was first accused in 2010, but the case stalled as prosecutors tried to subpoena Risen and the journalist resisted their efforts.
Even though an appeals court ultimately ruled Risen could be called to testify, the Justice Department eventually backed down and did not call him as a witness. Sterling’s defense attorneys alleged that all the while, their client was virtually unemployable.
Prosecutors have said Sterling was at least in part to blame for many of the pretrial delays.
The sentencing hearing is scheduled to begin at 2 p.m.
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