On multiple occasions, Jesselyn Radack has stated in the press that she was responsible for the government’s criminal case against John Walker Lindh crumbling within 24 hours of Newsweek publishing her emails. For example, she told an audience at Harvard University, “I ended up giving my emails, which were unclassified, I ended up giving them to Newsweek. They did a huge article, and the Lindh case ended in a surprise plea bargain deal the next day.” And during a 2019 interview with Potkaars journalist Rico Brouwer, she said, “I ended up giving [my emails] to the media, which ultimately caused the case to collapse.”
We know now that an ethics violation wouldn’t have made a bit of difference in the case. It was all a pack of lies that Radack and her accomplices fed the public for years.
Furthermore, even if we were to humor her story, the only thing her emails proved is that a federal prosecutor within the DOJ’s Criminal Division was aware of Lindh’s father hiring an attorney without his son’s knowledge or consent. Nowhere is there any evidence that the government considered Lindh represented by counsel, nor that any federal attorney within the FBI—and bound by both the McDade Amendment and the ABA’s professional standards of conduct—directed an agent to interview Lindh.
In other words, her emails exposed nothing of importance, which probably explains why only a tiny fraction of (compromised?) people have stood by her and continued to promote her fabricated story.
What the record shows is that after speaking with John De Pue, she sent him an email restating what he allegedly told her during their initial phone conversation, “Walker’s father retained counsel for him,” and to put it bluntly, no shit, Sherlock. Thanks for the briefer.
By the time she leaked her emails to journalist Michael Isikoff in June 2002, this was no secret, and neither the government nor Brosnahan needed her emails to inform them of this. In a letter that Brosnahan sent to the FBI director—with copies sent to then-Attorney General Ashcroft, the Secretary of Defense, and the General Counsel of the Defense Department—he wrote, “John has now been in custody for twelve days, and the government has known since at least December 4 that he is represented.”
Whether a judge would have agreed is debatable. The point is that he knew that the government knew who he was at least five days before the FBI interview took place and before Radack ever spoke with De Pue. And he obviously knew this six months before she leaked her emails.
And he, along with the rest of the world, knew at least six months before she handed over her attorney-client privileged emails to Newsweek that Lindh was Mirandized and interrogated by the FBI outside of his presence because the affidavit filed in support of criminal charges in January 2002, stated exactly this. Again, this was no secret:
On or about December 9 and 10, 2001, a Special Agent of the FBI interviewed Walker. Before conducting the interview, the Special Agent advised Walker of his Miranda rights. Walker acknowledged that he understood each of those rights, and then waived those rights. The Special Agent also presented Walker with a form on which those rights are set forth and Walker signed below the waiver clause in which he acknowledged that he understood his rights, that he was waiving those rights, and that he agreed to be questioned by the FBI outside the presence of a lawyer.
Ashcroft also mentioned this during a mid-January 2002 press conference:
As the complaint states, prior to being interviewed by the FBI, [Lindh] was informed of his Miranda rights, including the right to speak to counsel. He acknowledged that he understood each of his rights, and he chose to waive them, both verbally and in a signed document.
During that same press conference, a reporter asked him about Brosnahan’s attempts to meet with Lindh:
Reporter: “Sir, even though he was ‘Mirandized,’ his family has complained several times that they haven’t had the chance to get his lawyer in to talk to him yet. Do you know how soon his lawyer will have access to him now that these charges have been filed?”
By mid-January 2002, everyone was familiar with Brosnahan, and the overwhelming, irrefutable evidence shows that Radack exposed nothing by leaking her emails aside from another federal attorney allegedly telling her over the phone, “Walker’s father retained counsel for him,” which the entire world already knew about by the time she leaked.
A year before Newsweek published her emails, Brosnahan was named Trial Lawyer of the Year by the American Board of Trial Advocates. He attended Harvard Law School and spent five years practicing as a federal prosecutor. Moreover, he, like every licensed attorney in the U.S., has to follow ethics rules. This was hardly a foreign concept for him or the rest of Lindh’s legal team, for that matter.
No one needed Radack’s emails to tell them that an ethics violation might have occurred to know that an ethics violation might have occurred. Seeing that Brosnahan was the attorney involved in this post-9/11 dumpster fire from the beginning, he obviously knew that Lindh’s parents had retained him before the FBI interview took place.
He also knew that the government was aware of who he was before De Pue ever picked up the phone and called her because he had sent out at least five letters to U.S. officials introducing himself as Lindh’s attorney. Did the government really expect to prove in court that not a single federal official read any of those communications?
Had Lindh’s attorneys believed that arguing an ethics violation would have swayed a judge’s decision to suppress their client’s incriminating statements, it’s impossible to believe that they deliberately omitted the argument from every single motion they filed in court. Instead, they chose to argue Burbine’s totality of circumstances test, among other things, none of which included an ethics violation, because, unlike Radack, they were aware that an ethics violation could not be used in federal court to suppress their client’s statements.
Sources:
- https://www.justice.gov/archives/ag/affidavit-support-criminal-complaint-and-arrest-warrant
- https://www.americanbar.org/groups/senior_lawyers/awards/pickering_award/pickering-awardee/; https://archive.is/pMJaz
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