Shut Your Mouth ... or Else

As director of the National Archives' Information Security Oversight Office, Leonard was known as the government's "classification czar" because of his authority to enforce rules on the handling of classified information. He was also a strong critic of government classification practices, contending that far more information was branded "classified" (and therefore barred from public disclosure) than was justified.

But Justice Department prosecutors have aggressively struck back with an unusual maneuver to block Leonard from ever airing his views in court. After defense lawyers signaled their intention to use Leonard as an "expert witness," federal prosecutors filed a motion asserting that if Leonard appeared on the witness stand he could be criminally prosecuted under federal ethics laws.

The reason: Leonard had once briefly met with prosecutors on the AIPAC case when he still served in government. Therefore, the prosecutors now assert, he is covered by a federal ethics laws that bars former officials from appearing in court on behalf of a private party in any matter in which they had participated "personally and substantially" while they were in public office. "These ethics laws provide both criminal and civil penalties for violations," the prosecutors wrote in their motion. "Knowing violations of the law can be punished by not more than one year in jail and fine, and willful violations may be punished by up to five years in prison and fines." (A Justice Department official, who asked not to be identified, talking about an ongoing case, said that prosecutors did not view their motion as a threat, merely a statement of the applicable laws governing Leonard's cooperation with the defense lawyers.)

Defense attorneys and Leonard's lawyer, Mark Zaid, say the Justice Department's position is a stretch at best. Leonard never worked directly on the AIPAC case, they assert, and played no role in the decision to charge Rosen and Weissman with a crime. After the two men were indicted, government prosecutors met with Leonard for less than an hour in March 2006, to ask him if he would serve as a government witness to talk about the importance of protecting classified information. But when Leonard told them about the inconsistent ways in which national security information is classified, the prosecutors lost interest in using him as a witness and never contacted him again.

"It's an outrage" says Baruch Weiss, a defense lawyer representing Weissman, who is seeking to call Leonard as a witness in the case. "When they thought he might say what they wanted him to say, they said, 'Terrific.' When it turns out he's going to say something that is helpful to the defense, they say, "We're going to prosecute you for a crime.' I have never seen anything like this before."

Since then, defense lawyers have sought to subpoena Leonard, who, through his lawyer, Zaid, moved to squash the subpoena. The idea behind this legal back and forth was to force the judge in the case, T. S. Ellis III, to issue a ruling requiring Leonard to testify, thereby protecting him from criminal prosecution if he does. (Leonard had sought an ethics opinion from the Archives and was told he should seek a court ruling on the matter of his testimony.) There is no indication when Ellis might rule—or even when the AIPAC case might come to trial. Although it was scheduled to begin next month, lawyers say the date is certain to be moved back—most likely to next year—because of continued clashes over what national security secrets can be declassified and disclosed to the jury during the trial.