Judge: The government shouldn't have pressured AIPAC to abandon Rosen and Weissman

The story can be easily summarized: Defense lawyers for Steve Rosen and Keith Weissman, former AIPAC lobbyists charged for the disclosure of National Defense Information, claimed that the FBI had pressured AIPAC to fire them. They demanded that the judge will drop the charges against them because of that. Last week the judge ruled: he will not dismiss the case. End of story (Back in December I wrote about the same issue: Did the government pressure AIPAC to stop paying Rosen's and Weissman's legal fees?).

But one should take a second look at the judge's decision as it provides for an interesting reading (the full document is on the Secrecy News web site). Here are some of the highlights:

"That defendants' motion must be denied, for even assuming the government engaged in the conduct alleged, it did not prejudice the defense. Importantly, however, the result reached here is neither an endorsement of the [Thompson] Memorandum policy, nor does it diminish the conclusion that defendants? allegations, if true, reflect government conduct that is inappropriate and fraught with the risk of constitutional harm" (The Thompson Memorandum suggests that an organization who chooses to advance attorneys fees to an employee is more likely to be prosecuted. Some explanation of the Thompson Memorandum here, The Memorandum itself here).

"There is no doubt that, if defendants' allegations are taken as true, the government interfered with defendants' contractual relations with AIPAC by pressuring or coercing AIPAC to cease advancing fees. In this regard, defendants correctly argue that the wrongfulness of such interference should be informed by the civil law of tortuous interference with contract, given that the government?s threats wrongfully induced a breach of the alleged contracts between each defendant and AIPAC." The judge said earlier that under Virginia state law, the defendants could claim that AIPAC was obligated to fund their defense. "It is clear, therefore, that defendants have adequately shown a wrongful interference with their contractual relations with AIPAC" (JTA revealed yesterday that AIPAC agreed to pay Weissman's legal fees)

"The final element defendants must establish to prevail on their Sixth Amendment [right to counsel] claim is to show that the interference prejudiced their defense. This they cannot do... they claim that the loss of the AIPAC fee payments has reduced their counsel's effectiveness. This argument fails... defense counsel's zealous, thorough, and effective representation of defendants has not been adversely affected by the loss of AIPAC's fee payments... the record in this case reflects that defense counsel have mounted a vigorous and effective defense notwithstanding the absence of AIPAC fee payments... it is simply not tenable to argue that the loss of AIPAC fee payments has caused defense counsel to do less than their professional duty."