It seems so long ago.
In June 2012, before Edward Snowden popped up in a Hong Kong hotel and announced that he'd exposed National Security Agency surveillance programs, before the Department of Justice scooped up Associated Press phone records, Washington wasn't talking about leaks, at least not as much. The Supreme Court upholding the president's health care law was a far bigger story.
But last year members of Congress and the president were quietly demanding that the Justice Department do more to caulk leaks. Attorney General Eric Holder responded by starting a government-wide leak investigation. "The unauthorized disclosure of classified information can compromise the security of this country and all Americans, and it will not be tolerated," Holder said as he named two U.S. Attorneys to lead the charge, one of whom was a George W. Bush holdover, Ron Rosenstein from Maryland, and the other is now much better known--Ronald C. Machen, Jr., the Obama-appointed U.S. Attorney for the District of Columbia.
In the year since he was made a leak plumber, Machen has cut an extraordinary swath. It was Machen's office which issued the warrant request in 2010 for the emails and phone records of James Rosen, the Fox News reporter caught up in that leak about North Korea's nuclear programand it came to light this spring. It's his office that got those Associated Press phone records. There's a slim chance an Edward Snowden trial, if there is one, could end up in Machen's jurisdiction but even if it doesn't Machen remains a pivotal part of Obama's war on leaks and someone whose influence extends far beyond Washington.
How all of this landed in the muscular arms of Machen, a walk-on wide receiver for Stanford, is a story for the Obama era. Machen exemplifies the presidential style. Athletic, with a Harvard Law degree, the 44-year-old has glided easily between the worlds of public service and top law firms, the African-American community and the elite worlds where men of color are too few. Machen also graduated from Stanford the same year as Newark Mayor Corey Booker, who also played football there. The two recently appeared on a panel for Stanford's black alumni association.
Ultimately, Machen may be judged not like a typical prosecutor-- crime rate and convictions--but like the president--on how well he prosecutes the threats to national security. Machen may not have drones as his disposal, but he and Obama face a similar challenge--how to respond to threats to national security, while balancing force and restraint. How far do you go to punish a leak?
Your average prosecutor needn't wrestle with these questions. But national security has become a big part of the portfolio for the U.S. Attorney for the District of Columbia. It wasn't always this way. Back in the 90s, when Machen worked as a young prosecutor in the office, there wasn't a national security unit in the office. Now there is one with some 20 dedicated attorneys. Prosecutors in Machen's office have traveled to 25 countries pursuing cases.
Among them was the alleged leak of intelligence by Stephen Jin-Woo Kim, a State Department advisor, to Fox News's Rosen. In the past, prosecutors had sought reporters as witnesses in leak cases, asking them and their parent companies for their testimony and notes, subpoenaing them if they didn't comply and then slugging it out in court if they refused.
The warrant that Machen's office submitted to the court was different in kind and not degree. It named Rosen not as a witness but as "aider, abettor, and/or co-conspirator," allowing the FBI to pick up his private emails, survey his phone records and those of his parents, and track his going in and out of the State Department. Calling him a co-conspirator made Rosen a potential criminal target. To boot, the warrant was kept secret from Rosen. Google was instructed not to inform him that his emails had been turned over to Machen's prosecutors.
When the warrant was unearthed by The Washington Post earlier this spring, there was an outcry, of course, most of it directed at Holder who had signed off on the request. But Machen was the man in charge of this case and he defended the Associated Press subpoena in a statement: "We take seriously our obligations to follow all applicable laws...and strive to strike the proper balance between the public's interest in the free flow of information and the public's interest in the protection of national security." Holder later expressed regrets about the warrant said that there had never been any intention to prosecute the reporter. "The department has not prosecuted, and as long as I'm attorney general, will not prosecute any reporter for doing his or her job," Holder told a Senate panel.
But Holder's backpedaling raised questions for Machen. If there was never any intention to prosecute Rosen, had Machen's office been less than forthright with their requests for the warrant? (The New Yorker found that Machen's people had sought to keep Rosen from being swiftly informed. His warrant request was taken before two judges before Judge Royce Lamberth, the chief judge of the federal district court in D.C., signed off on it.) "James Rosen was a flight risk?" says Joseph DiGenova who is a former U.S. Attorney, mocking the warrant. So far there's no sign that Lamberth would issue a contempt order to anyone who sought the warrant, but the mere fact that the attorney general has backed off so far is embarrassing.
Beyond the Rosen case, Machen still has the portfolio of pursuing leaks throughout the government and there's no sign that he will back off. Indeed, while the Rosen case has been in the headlines, Machen's already gone after plenty of other disclosures, some closer to traditional espionage, like Walter and Kendall Myers -- the husband and wife team, sentenced in July 2010 for a conspiracy to provide secrets to Cuba and Stewart Nozette, a scientist sentenced last year to a 13-year prison term for providing classified information to a person he believed to be an Israeli intelligence officer.
And what about the big one, Edward Snowden? If U.S. law enforcement ever lands the 29-year-old and brings him back to the U.S. for prosecution, the Justice Department could choose any number of jurisdictions in which to press charges. It could be Maryland, home of the National Security Agency, and where the feds prosecuted the agency's whistleblower/leaker Thomas Andrews Drake before a plea deal was struck. But Snowden's mother works in the court and that could prompt a change in venue. Prosecutors often favor EDOV, the Eastern District of Virginia, for its famed "rocket docket"--a well-deserved reputation for fast prosecutions. Still, any number of cases have wound their way into federal district court in D.C.--Machen's turf--and it's at least plausible that a Snowden case could as well. Although even if it did, a prosecutor from "Main Justice" would likely be brought in rather than Machen being thrown the ball.
Beyond the world of leaks, it's Machen's anti-corruption crusade that's led to speculation that he could have future in politics. With a football player's imposing physical presence, Machen is a natural on the stump. He's got three sons and a spouse and moved from Silver Spring, Maryland to the District of Columbia when he became U.S. Attorney, saying that it was important to live in the community he serves. His folks offer up the predictable focused-on-my-job demurrals about what's next and, to be fair, he only took the job in 2010.
But Machen's complex corruption case against D.C. city government officials is also a good scaffolding for building a political future. U.S. Attorneys have been going after D.C. politicians for years--most memorably former Mayor Marion Barry--but none has launched a corruption probe this big and complex. Being African-American eliminates the charges of racial motivation which sometimes dogged Machen's predecessors.
Just this week, Machen got a plea for bribery from Michael A. Brown, the son of the late Commerce Secretary and Washington super lawyer Ron Brown. Photos of Brown taking wads of cash from FBI agents posing as would-be city contractors made the local news. And all of Washington is wondering whether Machen's hunt will include Mayor Vincent Gray. The mayor's denied any wrongdoing. But Machen's already rolled up three former city council members and he's not done. For his part, the Mayor's attorney, the venerable Robert Bennett, applauds Machen describing him as a "honorable prosecutor who has dealt in an honorable way."
Unlike other cities, D.C. has no district attorney and so Machen's in charge of prosecuting petty larceny as well as national security leaks, burglaries as well as bribes--about 20,000 cases in Superior Court which covers those kinds of local crimes and 475 in federal court. In his capacity as sheriff, he's greatly extended community outreach with faith-based meetings and youth summits aimed at preventing violence. The next youth summit is later this month and Machen described it to WAMU radio as, in part, an attempt to "influence behavior so we do not see [D.C. youth] in the courtroom." Machen didn't grow up in hard-scrabble circumstances like the D.C. residents caught up in the city's criminal justice system. Raised in Southfield, Michigan outside Detroit, his father was an chemist at Ford who found the scratch to send Machen to the Cranbrook School, Mitt Romney's alma mater just--a story akin to the president making it to the Punahou School in Hawaii. After Stanford and Harvard Law, it was the U.S. Attorney's office in D.C. and a good run at the Washington firm, Wilmer Hale.
Ironically that's where Machen represented a client, Allied Capital, which was involved in a case where one of its investigators had stolen phone records from another financial firm. Machen doesn't recall working substantively on that case and, in fact, other counsel was brought in to deal with it. Still, it's somewhat instructive. There were no prosecutions in phone records case. Many journalists and would be leakers are hoping Ronald Machen will spare them too but, these days, they're not counting on it.
Clarification: The story was updated to clarify an earlier statement that Machen was Allied Capital's legal representative in the stolen phone records case. As stated above, he has no recollection of working substantively on the case although he did significant work for Allied when he was in private practice with Wilmer Hale. Also, the original version of the story described Machen's office as "judge shopping" in the case of the Fox News subpoena. That has been changed to make it clear that Machen's office sought additional rulings in federal district court but did not seek another venue.
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