Did the government pressure AIPAC to stop paying Rosen's and Weissman's legal fees?

If you don't have time to sort through the boring legal details of the recent court session on the AIPAC case, I'll save you the time and recount the interesting parts for you.

First, and most important, (but this was already published when I took my short vacation) is the court ruling that set a high bar for conviction in the case. Prosecutors must prove that Steve Rosen and Keith Weissman, the two former AIPAC lobbyists, knew that their actions -disclosure of classified material to Israeli officials and to journalists - would be harmful to the U.S. If you want to know about this decision you can go to the Secrecy News blog and read all about it there: "you have a burden that is not insubstantial," the judge told the prosecutors, and indeed they do.

But the complete transcript of the court hearing contains some pretty interesting details regarding the brewing confrontation between the defendants and their former employer, AIPAC, as well. It is another round in a battle on which I had written a while ago. In my piece I addressed the fact that AIPAC had stopped paying the defendatns' legal fees. (see The AIPAC case: Is $1.6 million enough?).

The interesting development: In the courtroom, the defendants are now trying to convince the judge, that it had been the government's actions and pressure that led AIPAC to stop the payments. Furthermore, they are asserting that government acted illegally and as a result the prosecution should suffer dire consequences (the Sixth Amendment protects a defendant's right "to have the assistance of counsel for his defense"). The judge hasn't decided yet whether Rosen and Weissman have enough evidence to justify a separate evidentiary hearing on this matter. He will rule on "whether the threshold" has been crossed. And if not, what is required to cross the threshold." In the event that the defendants could cross this threshold "I will schedule an evidentiary Hearing," the judge said.

And now let's turn to the more detailed parts of the hearing that I find interesting - I've shortened it and added some remarks in [this old fashioned way]:

THE COURT [to the defense team]: Did you allege or do you allege that the Justice Department told AIPAC that if you continue to pay these folks or to pay for their lawyers, that we will indict you?

MR. NASSIKAS [Weissman's attorney]: In effect, yes "That the inference was there"

THE COURT: What do you mean "the inference was there"?

MR. NASSIKAS: Because, Judge, we lay out several different occasions where the U.S. Attorney or the Assistant U.S. Attorney is asking counsel for AIPAC or AIPAC's Executive Director whether AIPAC is continuing to pay the legal fees of these defendants at a time when AIPAC remained a subject [of the criminal investigation] a subject very much means in today's environment that an organization is under significant threat of ongoing criminal investigation or the potential for prosecution.

THE COURT: You didn't submit an affidavit from anybody at AIPAC that said they were threatened.

MR. NASSIKAS: We have not. We have simply submitted the factual information, Your Honor, where AIPAC counsel has recorded statements made by the U.S. Attorney, Mr. McNulty at the time, by Mr. DiGregory [the prosecutor], or others in the Government specifically, deliberately month after month asking, are you continuing to pay, not only the legal fees, the health benefits, are you continuing to be involved in a joint defense agreement, are you going to continue to employ these people. The most significant of everything I have just described is the legal fee inquiry.

MR. DiGREGORY: We have never conceded that they [meaning AIPAC] were the subjects of investigation, Your Honor. In fact, in our pleading we noted that in a meeting on October 27 of 2004, we specifically answered the question: Are we a target of your investigation? No [Pay attention: the difference between "target" and "subject" is significant].

MR. LOWELL [attorney for Rosen]: The reason we need an evidentiary hearing [to prove the allegation that AIPAC was pressured], Your Honor, goes as follows - if an AIPAC lawyer says, this is the way to get AIPAC from out under this ["this" - stop paying. "Get AIPAC out from under this" - ensure that it will not be a target of the investigation], then an evidentiary hearing revolves the issue lickety-split. Either he made that up or he was told that by the Government. And they are not telling us.

THE COURT: Has he [the attorney representing AIPAC] said under oath that he was told that by a lawyer?

MR. LOWELL: No, because there has been no evidentiary hearing in which that would occur.

THE COURT: Well, maybe before you get there, you may have to produce that affidavit...

MR. LOWELL: You can imagine that AIPAC is not being very cooperative in our fact finding given that what we are alleging is that they have improperly cut off our clients from something they are entitled to. But we can always try...

Just to sum it up, I called the AIPAC's spokesman, Patrick Dorton, regarding this matter. "Decisions about this case," he said, "including those about legal fees, were made independently, based on facts and commitment for doing the right things."

To be continued...