Based on the charging documents, Airman Jack Teixeira does not appear to have been acting as a foreign agent, differentiating him from classic spying cases. He also does not appear to have been acting as a whistle-blower.
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The Pentagon building in Arlington, Va. on Thursday.Credit…Haiyun Jiang/The New York Times
It is hard to predict how the case against Jack Teixeira, the 21-year-old Air National Guardsman accused of leaking classified documents to friends on a gaming server, will play out — both because the matter is still very preliminary and because the facts are so unusual that there is limited value in comparing it to the general pattern of leak cases.
Based on the charging documents in his case, Airman Teixeira does not appear to have been acting as a foreign agent, differentiating him from classic spying cases. He also does not appear to have been acting as a whistle-blower or otherwise trying to educate the general public by sharing secrets with the news media for publication, making his case different from another sort that has become more common in the 21st century.
He also does not fit a third category of past cases of mishandling classified information: the hoarder. Prosecutors have charged people who are neither spying nor trying to enlighten the public for taking files home and keeping them. But because Airman Teixeira is accused of transmitting large numbers of files to other people who were not authorized to see them, his case is more serious.
These differences show how past cases may be poor guides for how this will play out.
For example, leak-related cases have often been resolved by plea deals. Prosecutors have an incentive to avoid a trial so the government does not have to deal with the legal and bureaucratic problems from discussing classified evidence in court.
Defendants also have an incentive to make a deal so they can ensure a shorter sentence than the threat they are facing under the Espionage Act, which criminalizes the unauthorized retention and disclosure of national-security secrets. It carries a sentence of up to 10 years per count, and each leaked document could be its own count. Plea deals in leak-related cases have typically resulted in a few years of prison.
But prosecutors may be less willing to offer a relatively attractive prison sentence in a case as serious as Airman Teixeira’s, which involved hundreds of classified documents that revealed sensitive matters, like how extensively the United States has penetrated Russian military communications.
Notably, in two other cases involving the leaking of archives of material rather than a discrete secret or two, prosecutors and the defendant did not reach a plea deal.
Joshua Schulte, a former Central Intelligence Agency computer programmer, was accused of sending highly classified files about agency hacking tools to WikiLeaks. Mr. Schulte went to trial and was found guilty last year by a jury; he has not yet been sentenced.
Similarly, the military court-martial trial of Chelsea Manning, the former army intelligence analyst who sent hundreds of thousands of military and diplomatic files to WikiLeaks, played out to a verdict even though Ms. Manning pleaded guilty to a lesser version of the charges she was facing without any deal. Prosecutors wanted to convict on more serious charges.
Ms. Manning was convicted of some but not all of the more serious charges, and was sentenced to 35 years in prison in 2013, then released in 2017 after President Barack Obama had commuted most of the remainder of her sentence.
Another question is where the prosecution of Airman Teixeira will play out.
Because Airman Teixeira was in the Massachusetts Air National Guard and took the files from a military base, he could be prosecuted in the military court-martial system instead of federal court. But Eugene Fidell, a specialist in military law and lecturer at Yale Law School, said it was “unimaginable” that the Justice Department would give up the case because of its “high visibility,” adding that the Justice Department had more experience prosecuting these cases than the Defense Department.
A related question is where he will be prosecuted. Airman Teixeira was arrested in Massachusetts, and the case is playing out there. But it would not be surprising if the Justice Department eventually were to seek to prosecute him in the Eastern District of Virginia, which is home to the Pentagon — the victim agency.
The federal courthouse in Alexandria, Va., has been the site of numerous leak cases, and the U.S. attorney’s office there — whose district also includes the C.I.A. — is experienced in handling such matters.
It also appears that the F.B.I. investigation that resulted in Airman Teixeira’s arrest is based out of the Washington Field Office, whose area of responsibility includes the Pentagon, not Boston. The special agent who filed an affidavit in support of a criminal complaint and arrest warrant said he worked in the Washington office.
Still, moving venue raises legal and bureaucratic complexities. Notably, Mr. Schulte was prosecuted in the Southern District of New York, where he lived and was arrested, even though the C.I.A. was the victim agency and the Justice Department’s main WikiLeaks investigation has been conducted with a grand jury based at the Alexandria courthouse.
The U.S. attorney’s office in Massachusetts has some experience in leak-related cases. In 2020, it obtained a guilty plea from a former Raytheon systems engineer for illegally retaining 31,000 pages of information that was marked as classified, some of which pertained to U.S. missile defense. He was fined $10,000 and sentenced to 18 months in prison.