Jeffrey Sterling — Mark Zaid Responds to Allegations He betrayed His Client

“Because he just formed a new whistleblower group with John Napier Tye, there as been renewed interest in allegations an FBI Agent made during the Jeffrey Sterling case about attorney Mark Zaid. But there was actually a second detail regarding Zaid released just after the trial that has not been publicly reported: Zaid was interviewed by the FBI, twice, and was even interviewed before Sterling himself was.”

Marcy Wheeler aka Emptywheel

“I do know for a fact that nothing I have ever said to the FBI could ever be construed in a way unfavorable to Jeffrey Sterling. (…) This ‘analysis’ is a disservice to Jeff, who continues to proclaim his innocence of doing anything wrong.”

Mark S. Zaid — September 27 2017

Marcy Wheeler — aka “emptywheel” — is an American independent journalist specializing in national security and civil liberties. In a recent post published on her own blog, she suggests that Mark Zaid may have somehow betrayed his former client (ex CIA) Jeffrey Sterling while interviewed by the FBI. [At the time, FBI considered Senate Intelligence Committee staffer Bill Duhnke a more likely suspect than Sterling ] Zaid responded to the allegation. His answer is worth reading carefully which is why I reproduce it here. Follow us on Twitter: @INTEL_TODAY

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Jeffrey Alexander Sterling is an American lawyer and former CIA employee who was arrested, charged, and convicted of violating the Espionage Act for revealing details about Operation Merlin to journalist James Risen.

On June 22 2017, a three-judge panel with the U.S. Court of Appeals for the 4th Circuit upheld all but one of Sterling’s convictions.

Moreover, the Court determined that because his 42-month sentence could have applied to any single count of which he was found guilty, there was no need to take further action.

In May 2015, Sterling was sentenced to 3½ years in prison and thus set for release in late 2018.

Response from Mark Zaid

This is a typical example of analysis by someone who fails to understand, particularly because they have absolutely no experience with law, law enforcement or intelligence matters, how the FBI conducts and records its investigations.

Additionally, as is often the case, armchair “experts” attempt to fill in facts that they simply do not know because they were not personally involved with the matter. While many people would simply ignore these types of attacks, that is not my style. I will instead confront them directly particularly as I have nothing to hide.

First, I was unaware of the tweet referenced above or else I would have responded. The insinuation made is again an example of someone simply poised to personally attack me in that they would assume an individual tweet from them would be seen amidst the hundreds, sometimes thousands, of others I receive on a daily basis.

Second, nothing I write here will reveal any information that is attorney-client privileged to Jeff Sterling. My obligation to protect that information exists in perpetuity. I have practiced law for nearly 25 years and I do not violate privilege of any of my clients. Indeed, had it been perceived I had done so in Jeff’s case I have no doubt he, or his criminal defense lawyers, would have, as they should have, reported me to the Bar Association for disciplinary action. Needless to say, that has never happened, for obvious reasons.

Third, I represented Jeff from 2001 until roughly when I was subpoenaed before the Grand Jury in 2010. At that time I became a witness and was conflicted out of further representation. Of course, I was not a primary defense attorney in the case as that is not my practice area (I am a national security employment attorney), but I did handle, with my then law partner Roy Krieger, all of the administrative/criminal investigations that took place between 2003 – 2010 (mostly 2003-2006). This was ongoing while I was serving as counsel to Jeff in his civil discrimination lawsuit which started in SDNY in 2001, and then ended up at EDVA, the 4th Circuit and ultimately was declined cert at the U.S. Supreme Court sometime around 2005-2006.

Fourth, my personal opinion was that I was subpoenaed before the Grand Jury in large part as a strike against me given the years I had litigated against CIA, as well as to complicate Jeff’s legal representation as I was aware of significant facts. Obviously, it is highly unusual for a lawyer to be subpoenaed in a criminal case against his own client. Indeed, such approval is usually reserved for the Attorney or Deputy Attorney General of the United States. Of course, the issue of attorney-client privilege is controlled by the client, not the lawyer. I cannot consent to testify to information that is privileged, only the client can. Because discussions with the Govt made it clear they would not ask or press me on attorney-client privileged information, my presence before the Grand Jury was not objected to by Jeff or his criminal lawyers. I testified solely about non-privileged, third party information, such as my involvement with the Senate Select Committee on Intelligence and civil settlement discussions with CIA. Here is the Washington Post’s story on my Grand Jury testimony:

BTW, Jeff’s attorneys had access to my Grand Jury testimony and know exactly what I stated. Yet, again, no action of any kind was ever taken against me. In fact, I was asked by the Grand Jury whether I was the source of the classified leak! I was not.

Fifth, just because there is a FBI 302 report of a discussion with me doesn’t mean it was an “interview”. Again, this is reflective of the lack of understanding of a process the above author has no experience with at all. I should note I have never seen these 302 reports so I have no idea what they actually state, or whether accurately or inaccurately reflect the Agent’s memory of a conversation or action.

That first April 2003 “interview” was undoubtedly to set up the interview that took place between Jeff and the FBI in June 2003. The CIA was adamant that I not be allowed to participate in that meeting, whereas the FBI believed I should be there. There was an intense battle between the agencies that took weeks to resolve and I know because the FBI agents shared that information with me. Frankly, as is noted in SA Hunt’s testimony, the FBI believed the leak was from the Senate, not from Jeff. They told me that specifically as well on several occasions. Ultimately the FBI told CIA that if CIA didn’t clear me to attend the interview, then it would. It did, and I was there defending Jeff during the June 2003 interview, along with my then law partner.

Sixth, that September 2, 2010, “interview” memorialized by the 302 was probably simply noting they had served me with the subpoena to testify before the Grand Jury on September 22, 2010. The FBI memorializes every little step they take in these cases, from the mundane to significant. I also remember meeting with the prosecutor, with FBI agents present, to discuss the scope of my testimony, i.e., the limits of attorney-client privilege. It could have been that as well. I honestly do not recall. But I do know for a fact that nothing I have ever said to the FBI could ever be construed in a way unfavorable to Jeff. BTW, I had to retain my own legal counsel at my own personal expense for my Grand Jury appearance, and I was happy to do so because my desire was to protect Jeff.

Seventh, let me address SA Hunt’s hearsay testimony about this alleged 2003 conversation that occurred with the CIA. You will note it does not distinguish between me or my law partner Roy Krieger, although of course certain individuals have no problem with blaming me for whatever was discussed. I have represented intelligence personnel, including some of the most covert individuals, for nearly my entire legal career that spans approaching 25 years. I have represented untold numbers of CIA personnel. As I stated above, at no time have I ever violated attorney-client privilege regarding a client (although there are ethical exception where I could have, especially when they threaten to reveal classified information that could lead to the harm of others, and I have seen it all over these years).

At NO time did I ever tell the FBI or CIA or any member of the US Government that Jeff Sterling was going to reveal classified information. Plain and simple. Any assertion or insinuation to the contrary is nothing less than defamatory.

I have never seen this purported CIA memo and I disagree with the characterization of the alleged hearsay facts presented, but the extent to which the FBI assumed it related to Sterling was their guess, nothing more.

Finally, Jeff is a friend of mine and has been for over 16 years. I was there with him during some very rough times when no one else was supporting him. That is typical for those in the Intelligence Community who are isolated and ostracized. He was unfairly prosecuted and excessively sentenced. Even though I was no longer his legal counsel, I was in constant contact with him or his lawyers throughout his trial and there if he needed me. I still am.

This “analysis” is a disservice to Jeff, who continues to proclaim his innocence of doing anything wrong. Frankly, if you want to know why Jeff, who the Govt had completely lost interest in following my representation of his interests in 2003 (as SA Hunt admitted, the FBI didn’t believe it was Jeff), was then pursued and prosecuted, go no further than reading the 2006 book State of War. It will be very clear when you do.

Mark S. Zaid — September 27 2017


Sterling joined the CIA on May 14, 1993. In 1995, he became operations officer in the Iran task force of the CIA’s Near East and South Asia division.

In April 2000, Sterling filed a complaint with the CIA’s Equal Employment Office about management’s alleged racial discrimination practices. The CIA subsequently revoked Sterling’s authorization to receive or possess classified documents concerning the secret operation and placed him on administrative leave in March 2001. After the failure of two settlement attempts, his contract with the CIA was terminated on January 31, 2002.

Sterling’s lawsuit accusing CIA officials of racial discrimination was dismissed by the judge after the government successfully argued the state secrets privilege by alleging the litigation would require disclosure of classified information. The 4th U.S. Circuit Court of Appeals upheld the dismissal, ruling in 2005 that “there is no way for Sterling to prove employment discrimination without exposing at least some classified details of the covert employment that gives context to his claim.”

On December 22, 2010, U.S. attorney Neil H. MacBride filed an indictment against Jeffrey Alexander Sterling on the Unlawful Retention and Unauthorized Disclosure of National Defense Information, Mail Fraud, Unauthorized Conveyance of Government Property, and Obstruction of Justice.

Sterling was arrested on January 6, 2011.

Sterling was convicted of espionage charges on January 26, 2015

On 11 May 2015, Sterling was sentenced to 3½ years in prison and thus set for release in 2018.

On August 11 2016, Jeffrey Sterling filed a health complaint against Colorado federal correctional institution.

December 2016 — Jeffrey’s appellate hearing took place in early December 2016.

June 22, 2017 — The appellate court upheld all but one of Jeffrey’s convictions.

Mark Zaid in his own words


The Mark Zaid Materials from the Jeffrey Sterling Trial — Emptywheel


Jeffrey Sterling — Mark Zaid Responds to Allegations He betrayed His Client

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