Former FBI agent Terry Albury was sentenced to four years in prison Thursday in the second leak prosecution of the Trump era, after federal prosecutors and a Minnesota judge rejected Albury's argument that more senior officials faced much lighter penalties for similar activities.
Albury's case was compared by some experts to the treatment of men who led the FBI at the time of his leaks, who have not been prosecuted for their disclosures to reporters.
Albury pleaded guilty in April to two counts of violating the Espionage Act in what his attorneys called “an act of conscience." He is believed to have sent The Intercept documents that included a guide to informant recruitment and rules for seizing journalist records.
He spoke before he was sentenced and apologized to his former colleagues, independent journalist Joseph Sabroski reported on Twitter. Albury was allegedly motivated by discrimination as the only black agent in Minneapolis. He did not immediately report to prison.
Terry Albury is now leaving the courthouse. pic.twitter.com/PnTUuC61jv— Joseph Sabroski (@sabrosef) October 18, 2018
An attorney for Albury argued for a lighter sentence, and said the results of leak cases were "inequitable." The lawyer cited former CIA Director David Petraeus, who pleaded guilty to a misdemeanor in 2015 and received probation for sharing top secret information with his mistress and biographer.
A Justice Department attorney rejected the claim of a double standard by saying that it was offensive to suggest that leak cases are politicized, Sabroski reported.
Albury's sentencing came days after the fifth leak indictment of the Trump administration, against a Treasury Department official accused of leaking suspicious activity reports, and after former National Security Agency contractor Reality Winner was sentenced to more than five years in prison in August for leaking classified information on Russian attempts to hack election systems.
Winner's case was the first leak prosecution under President Trump. After she was sentenced, the president tweeted, "Ex-NSA contractor to spend 63 months in jail over 'classified' information. Gee, this is 'small potatoes' compared to what Hillary Clinton did! So unfair Jeff, Double Standard." Clinton was not prosecuted for mishandling classified information while secretary of state.
Whistleblower advocates noted that Albury’s leaks began in February 2016, when the bureau was led by Director James Comey, and continued until August 2017, when FBI Deputy Director Andrew McCabe’s three-month stint as acting director ended.
Both Comey and McCabe have faced intense scrutiny for their links to the media.
Comey admittedly leaked memos about his conversations with President Trump, and some of the memos reportedly contained classified information. McCabe authorized a self-serving 2016 leak to report about an investigation of the Clinton Foundation, before allegedly lying about it to Comey, FBI agents, and the Justice Department's inspector general.
"The government will no doubt argue that leak cases are evaluated individually, but if equal treatment and proportionality in punishment are key precepts of our criminal justice system, ours is an abysmal failure. The outcomes have everything to do with politics and nothing to do with justice,” Jesselyn Radack, a prominent whistleblower defense attorney, previously told the Washington Examiner.
Trevor Timm, the executive director of the Freedom of the Press Foundation and a critic of authorities using the Espionage Act to prosecute leaks, said he sees a particular contrast in public response to Albury.
"The double standard is really the amount of attention and support from the public. McCabe and Comey were showered with hundreds of thousands of dollars, while a brave whistleblower like Albury was all but forgotten," Timm said. "The fact that Albury got four years is an indictment of the Espionage Act and the U.S. legal system, where Albury was unable to put up a public interest defense and was basically forced to plead guilty even though there was just cause for his actions."
Jonathan Turley, a law professor at George Washington University, said at the time of Albury's plea that, “Washington continues to operate on a type of ‘Animal Farm’ culture where everyone is equal but some are more equal than others. There remains a sharp disconnect in how high-ranking officials are treated as opposed to others in our system.”
“The Albury case shows the disturbing disconnect in the treatment of those accused of leaking. There was no long period of internal debate, or a $500,000 defense fund like McCabe's, for Albury,” Turley said, referring to an online fundraiser for McCabe.
“Comey was tasked with finding leaks and then became a leaker himself. The memos released clearly show that these were FBI documents — as the FBI itself has indicated. Not only did Comey improperly remove the the memos, but then gave four to a person to leak the information to the media. It now appears that four were viewed as classified — deepening the concerns in how others have been treated for classified leaks,” he said.
Comey said he gave four of seven memos he wrote about talks with Trump to Columbia University law professor Daniel Richman to leak to reporters, to force the appointment of a special counsel to investigate potential Trump campaign collusion with Russia.
The Wall Street Journal reported in April the Justice Department inspector general’s office is reviewing two memos given to Richman that had classified information, though one apparently was revised by Comey to remove the classified content. The other memo’s content reportedly was upgraded to “confidential,” the lowest level of classification, after it was shared.
Richman, who represents Comey as a legal client, did not respond to a request for comment. The inspector's general office declined to comment.
Turley said it’s possible McCabe’s case will be different than most unprosecuted allegations against senior officials, given an inspector general criminal referral, but that “often these referrals die in the U.S. Attorney for the District of Columbia after being scuttled by prosecutors [and] are often not even submitted to grand juries.”
As deputy director of the FBI, McCabe authorized public confirmation of a probe into the Clinton Foundation in an effort to dispute allegations he was biased, according to an inspector general report. But McCabe allegedly told Comey and investigators lies about his role in doing so, which could constitute a crime. McCabe’s alleged misconduct resulted in his firing by Attorney General Jeff Sessions upon the recommendation of the FBI’s Office of Professional Responsibility,
McCabe spokeswoman Melissa Schwartz previously told the Washington Examiner he "neither lied nor leaked," leaning on an interpretation that there was a series of misunderstandings, rather than intentional untruths — a contention dismissed by the Justice Department's inspector general.
"Each of these cases is at least a bit different, so there is always a question about equal treatment, or the lack thereof," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.
"Senior agency officials have more authority, and therefore more leeway to disclose information," he said. "But sometimes they are also treated under a quite different standard, most notably in the Petraeus case."