In an interview with Yahoo News, Holder said there was a chance that the Justice Department would agree to a plea bargain in which Snowden would avoid the most severe charges for which he is eligible.
“I certainly think there could be a basis for a resolution that everybody could ultimately be satisfied with,” said Holder, who retired as the government’s top law-enforcement official in April. “I think the possibility exists.”
Holder’s Justice Department charged Snowden with three felony counts of violating the Espionage Act in 2013, but in light of the national debate over surveillance reform that led to the passage of the USA Freedom Act, Holder seems to have changed his tune slightly.
“We are in a different place as a result of the Snowden disclosures,” Holder said. “His actions spurred a necessary debate.”
“The former attorney general’s recognition that Snowden’s actions led to meaningful changes is welcome,” Snowden’s attorney Ben Wizner told Yahoo News. “This is significant … I don’t think we’ve seen this kind of respect from anybody at a Cabinet level before.”
Of course, Holder is not at a Cabinet level anymore. He’s back in the private sector, and as a private citizen, he evidently feels freer to speak openly about government policy. The comments of a private citizen, however connected and experienced, are not the same as an official statement—and the official statement was not nearly as forthcoming.
“This is an ongoing case so I am not going to get into specific details,” Melanie Newman, Attorney General Loretta Lynch’s top spokeswoman, told Yahoo News. “But I can say our position regarding bringing Edward Snowden back to the United States to face charges has not changed.”
Yahoo News also reported that Robert Litt, Director of National Intelligence James Clapper’s top lawyer, privately suggested a plea deal for a short prison sentence. Wizner said that Snowden would not accept the specific deal that Litt allegedly floated.
Despite campaigning on a promise of transparency, President Barack Obama has gone further than any previous commander-in-chief to crack down on whistleblowers. His administration has indicted Shamai Leibowitz, whose prosecution was so secret that not even the judge knew what he was guilty of; Chelsea Manning, for leaking military documents to WikiLeaks; and John Kiriakou, for leaking al-Qaeda interrogation information to a news outlet.
All of the leakers who were found guilty received more jail time than Gen. David Petraeus, the former commander of American military forces in Afghanistan, who provided national-security secrets to the writer of his biography, with whom he was also having an affair. Petraeus received two years probation and a fine but never went to prison.
“Should any federal employee wish to blow the whistle or report government wrongdoing,” the government said in a statement, “there are well-established mechanisms for doing so with the Offices of Inspector General of their respective agencies.”
“With regard to classified information,” the statement continued, “there is a particular statute providing lawful mechanisms for reporting such matters.”
Those charged under the Espionage Act, the government argues, have impermissibly gone beyond those mechanisms.
Any plea deal for Snowden would be politically problematic in the runup to the 2016 presidential election. Former Florida Gov. Jeb Bush, the current Republican frontrunner, tweeted his disapproval of a plea deal yesterday. “Snowden broke the law, recklessly endangered nat’l security, & fled to China/Russia,” Bush wrote. “He should be given no leniency.”
Spokespeople for former Secretary of State Hillary Clinton, the Democratic frontrunner, and Sens. Bernie Sanders (I-Vt.) and Rand Paul (R-Ky.), two other presidential candidates, did not respond to requests for comment about their positions on a potential deal.
Illustration by Max Fleishman