Arent Fox Wins Complete Victory in AIPAC Espionage Case

    May 4, 2009

    Arent Fox partners John Nassikas and Baruch Weiss scored a historic victory today in their representation of a former employee of the American Israel Public Affairs Committee (AIPAC) charged with violating the 1917 Espionage Act when the US Justice Department announced it was moving to drop all charges against the defendants in the case.

    Following the government's announcement, John and Baruch today issued a joint statement with their co-counsel, Abbe Lowell of McDermott Will & Emery, saying, in part:

    “It was wrong for the government to single out AIPAC and our clients and allege wrongdoing when all they ever did was their job of helping the United States create better foreign policy; it was wrong to apply the Espionage Act to people who clearly were not spies; it was wrong to invent a new application of a 1917 law to non-government officials when government officials in the case were not charged and even were promoted; it was wrong to seek to chill debate about American foreign policy by charging foreign policy advocates and threatening that these charges could be brought against journalists; and, it was especially wrong, not to see the many flaws in the case so that these two men and their families had to live under this unfair cloud for so long.”

    “We are extremely grateful that this new Administration, in coordination with the US Attorney’s Office in Virginia, has taken seriously their obligation to evaluate cases on the merits and not to allow an unjust prosecution to continue solely due to momentum. We are indebted to the district court who took so much time and gave so much attention to the serious issues that were raised in this unprecedented prosecution and who sharply focused those issues in more than a dozen published opinions. And, we are thankful that the First Amendment values of our country have been recognized.” 

    To read the full statement, please click here.

    John, Baruch and Abbe Lowell held a conference call with the media this afternoon, answering questions from news organizations such as The Washington Post, The Associated Press, CNN, Reuters, Politico and The Los Angeles Times.

    A Long Journey, an Innovative Defense, and a Historic Victory

    Today's victory was the result of a bold and innovative legal defense strategy devised by Baruch and John that challenged the government's case every step of the way over the past five years.

    In February, 2009, a federal appeals court handed Baruch and John a key tactical pre-trial win when it denied the government's effort to limit the defendants' use of classified information at trial, which had been scheduled to begin in June.

    At the time, Baruch and John's victory garnered substantial media attention, with stories appearing in The New York Times, The Washington Post and other publications. 

    The New York Times wrote, “John N. Nassikas III and Baruch Weiss, two of the defense lawyers, said that they believed the appellate ruling and an earlier one by the trial judge greatly increased the prosecutors' difficulty in continuing the case. 'These will hopefully cause the government to reconsider its prosecution of the case,' they said.”

    Two of the nation's leading newspapers agreed and, following the appellate court's decision, called on the government to drop its prosecution of the two AIPAC officials. The Washington Post wrote, “Attorney General Eric H. Holder Jr. should put an end to a criminal case that should never have been brought” and that the prosecution “risks profound damage to the First Amendment” and “in effect criminalizes the exchange of information.” The Wall Street Journal agreed, writing the case was a “misfire” by the Justice Department and “Attorney General Eric Holder can do the country a favor by dropping it.”

    Another pre-trial victory for John, Baruch and the defense team came earlier, when in November, 2007, the judge presiding over the case granted a defense motion to subpoena a number of high-ranking government officials, including Secretary of State Condoleezza Rice and National Security Adviser Stephen J. Hadley.

    At the time, The Washington Post called it “a rare ruling,” with legal experts saying “it would be highly unusual for such a parade of senior officials to testify at a criminal trial. Although former president Ronald Reagan and former attorney general Edwin I. Meese III testified at a trial arising from the Iran-contra affair in the 1980s, judges usually decline to grant such subpoenas on the grounds that high-level officials are too busy or that the information can be obtained from other sources.”

    In moving to dismiss all charges against the defendants, the prosecutors specifically noted that the defense team's pre-trial victories before the district and appellate courts had “diminished the likelihood the government will prevail,” writing the “landscape has changed significantly since the case was first brought.”