Snowden has indicated on several occasions that he was willing to return to the U.S. to stand trial, but not under the charges that were filed under the Espionage Act, which he felt would hamper his defense, There were periodic rumors (related to both Obama and Trump) of a presidential pardon.
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Criminal charges
On June 14, 2013, United States federal prosecutors filed a criminal complaint [278] against Snowden, charging him with three felonies: theft of government property and two counts of violating the Espionage Act of 1917 (18 U. S. C. Sect. 792 et. seq.; Publ. L. 65-24) through unauthorized communication of national defense information and willful communication of classified communications intelligence information to an unauthorized person. [5] [275]
Specifically, the charges filed in the Criminal Complaint were:
- 18 U.S.C. 641 Theft of Government Property
- 18 U.S.C. 793(d) Unauthorized Communication of National Defense Information
- 18 U.S.C. 798(a)(3) Willful Communication of Classified Intelligence Information to an Unauthorized Person
Each of the three charges carries a maximum possible prison term of ten years. The criminal complaint was initially secret but was unsealed a week later.
Analysis of Criminal Complaint
Stephen P. Mulligan and Jennifer K. Elsea, Legislative attorneys for the Congressional Research Service, provide a 2017 analysis [279] of the uses of the Espionage Act to prosecute unauthorized disclosures of classified information, based on what was disclosed, to whom, and how; the burden of proof requirements e.g. degrees of Mens Rea (guilty mind), and the relationship of such considerations to the First Amendment framework of protections of free speech are also analyzed. The analysis includes the charges against Snowden, among several other cases. The discussion also covers gaps in the legal framework used to prosecute such cases.
Snowden response to Criminal ComplaintSnowden was asked in a January 2014 interview about returning to the U.S. to face the charges in court, as Obama had suggested a few days prior. Snowden explained why he rejected the request:
What he doesn't say are that the crimes that he's charged me with are crimes that don't allow me to make my case. They don't allow me to defend myself in an open court to the public and convince a jury that what I did was to their benefit. ... So it's, I would say, illustrative that the president would choose to say someone should face the music when he knows the music is a show trial. [62] [280]
Snowden's legal representative, Jesselyn Radack, wrote that "the Espionage Act effectively hinders a person from defending himself before a jury in an open court." She said that the "arcane World War I law" was never meant to prosecute whistleblowers, but rather spies who betrayed their trust by selling secrets to enemies for profit. Non-profit betrayals were not considered. [281]
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