Whistleblower Eugene Snowden Not Yet Charged With Crimes

Eugene Snowden

Numerous media outlets have filed stories reporting that Eugene Snowden has been charged by the Justice Department with several crimes, including "espionage."

The information is in error.  Under the United States Constitution, Amendment V, in the federal system a person cannot be formally charged with a crime unless there is an indictment by a grand jury. That has not happened in this case.  What has happened is that an FBI  'special agent" filed a "Criminal Complaint"  in the Eastern District of Virginia Federal Court alleging that Snowden committed certain crimes along with an affidavit apparently providing facts. (The affidavit accompanying the one page of charges apparently has not been making public.)  That is a precursor to the United States making a request that Snowden be sent back to the United States.

There is some confusion too on the charges.  Snowden has been accused by the FBI of the following:

Theft of Government Property (18 U.S.C 641)

Unauthorized Communication of Classified National Defense Information (18 U.S.C. 793(d)

Willful Communication of Classified Communication Intelligence Information to an Unauthorized Person (18 U.S.C. 798(a)(3))

While it has been widely reported that Snowden faces execution on "espionage" charges, I reviewed each of the code sections and each of the charges would appear limited to a 10 year prison sentence and a fine or both.  Of course, multiple acts could mean multiple 10 year punishments.   But I don't see how "execution" is even on the table as outlined in the Criminal Complaint.

One thing that is not clear is how the government can be talking about or release publicly a criminal complaint that is under seal.  Reuters reports how the unsealing came about:

The complaint, which initially was sealed, was filed in the Eastern District of Virginia, a jurisdiction where Snowden’s former employer, Booz Allen Hamilton, is headquartered and a district with a long track record of prosecuting cases with national security implications. After The Washington Post reported the charges, senior administration officials said late Friday that the Justice Department was barraged with calls from lawmakers and reporters and decided to unseal the criminal complaint.

Under the federal rules whether to "seal" a complaint or an indictment is a judicial decision.  Once it is sealed, both parties, including U.S. attorneys and federal investigators, can get in trouble  for disclosing information about the complaint or indictment.   I don't know how those executive officials have the authority to "unseal" a judicially sealed criminal complaint in order to talk about it.  If there was grounds to unseal the complaint, which it appeared there were, that argument should have made to the court for the appropriate order unsealing the document.

This discussion is not meant to endorse the apparently all too routine practice of federal courts sealing complaints and indictments without good cause.

It appears though that the filing of this Criminal Complaint starts a 60 day clock on obtaining a criminal indictment from a grand jury.  The grand jury process generally is a one sided process where the jurors hear only the government's case.  While typically the grand jury will rubber stamp the federal prosecutor's request for criminal charges, this case though might be different.  About half of the Americans view Snowden not as a criminal but as a hero.  Some of those people may end up on the grand jury.