Everything You Need to Know About New Leaker Case

COMMENTARY Crime and Justice

Everything You Need to Know About New Leaker Case

May 5, 2023 8 min read

Commentary By

Charles “Cully” Stimson @cullystimson

Senior Legal Fellow and Deputy Director, Meese Center

John Malcolm @malcolm_john

Vice President, Institute for Constitutional Government

Jack M. Teixeira heads into the Harold D. Donohue Federal Building for his son's detention hearing. Jonathan Wiggs / The Boston Globe / Getty Images

Key Takeaways

Teixeira is accused of leaking scores of classified documents—the largest disclosure of classified U.S. secrets in a decade—to friends in a chatroom.

The documents...apparently include American and NATO plans for building up the Ukrainian army...and other detailed reports on the war.

This case doesn’t appear to be a whodunit. It appears to be more of a case of “What did he do, and how bad was it?”

A federal magistrate judge in Worcester, Massachusetts, heard arguments last week on whether the young airman accused of leaking scores of classified documents should be freed on bond or detained pending trial.

Judge David H. Hennessy, after listening to government and defense lawyers for 90 minutes, took the matter under advisement Thursday and said he would rule shortly in the case of Airman 1st Class Jack Teixeira, 21, a member of the Massachusetts Air National Guard.

Teixeira is accused of leaking scores of classified documents—the largest disclosure of classified U.S. secrets in a decade—to friends in a chatroom using the Discord communication app.

At this point, the numerous open questions about this case include: What will Teixeira be charged with? Why was he able to get away with downloading and absconding with these documents, if he did it? What took the government so long to find out about these disclosures? Exactly what documents is he accused of taking or copying? When did this criminal activity start? 

The Teixeira case, which is still unfolding, has rattled the national security establishment, exposed sensitive sources and methods, and caused untold damage that we are only beginning to understand. 

And the big one everyone is asking: Why did this happen again, given all the safeguards allegedly put into place after the Bradley (Chelsea) Manning debacle?

The Criminal Complaint

Justice Department filed a criminal complaint April 14 in U.S. District Court for the District of Massachusetts, accusing Teixeira of violating two federal laws: unauthorized retention and transmission of national defense information (18 U.S.C. § 793(b) and (d)) and unauthorized removal and retention of classified documents or material (18 U.S.C. § 1924).  

Each violation of 18 U.S.C. 793 carries a maximum sentence of 10 years upon conviction, and each violation of 18 U.S.C. 1924 carries a maximum of five years.

A criminal complaint is a document prepared by the U.S. Attorney’s Office in conjunction with law enforcement. It contains alleged facts that the government believes establish probable cause to arrest a person for those violations and typically is presented to a federal magistrate judge for his consideration. 

Once the judge finds probable cause and signs the arrest warrant, that starts the criminal process. The U.S. Attorney’s Office then will seek an indictment from a federal grand jury, unless a plea deal is reached beforehand.

The criminal complaint in this case contains an affidavit signed by an FBI agent laying out facts to support probable cause for both alleged crimes, including the statement that the “FBI has been investigating the unauthorized disclosure of classified national defense information in connection with the posting of dozens of documents on various public Internet sites.” 

Although the affidavit does not state when the FBI started its investigation—around April 6, according to a Washington Post timeline of events in this case—it says that the Pentagon became “aware that secret military documents were circulating online—weeks after they started spreading.” The likely source of that awareness was The New York Times, which began reporting on the story that day.

Known Facts to Date

Affidavits typically provide only a bare-bones outline of facts—just enough to establish probable cause—that are known to the government.

The affidavit in the Teixeira case is no different. It provides information that came from a user of the server (identified by the press as the Discord chat platform) who spoke to the FBI. According to this source, Teixeira began posting text that appeared to contain classified information on a social media platform using a server that he administered sometime around December 2022. 

A month later, in January, Teixeira allegedly began posting photographs of U.S. government documents with classified markings. In February, records indicated that he accessed and posted a document that described the status of the Russia-Ukraine conflict, including troop movements on a particular date. The source indicated that Teixeira posted the document to the server and that the source reposted it to the internet the following day.

Significantly, the affidavit states, “the government document is based on sensitive U.S. intelligence, gathered through classified sources and methods, and contains national defense information.  An Original Classification Authority has confirmed that the Government Document is classified at the TS/SCI level.”

In other words, in addition to admitting that the document is authentic, the government confirmed that the originating agency had confirmed that the document was classified at the top-secret level and that it contained sensitive compartmented information. Known by the acronym SCI, this includes particularly sensitive information about intelligence sources and methods. Access to SCI is granted only to those persons with a “need to know” the information.

According to the source, at some point, Teixeira became concerned that he might be discovered making transcriptions of the classified information at work, so he began taking the documents to his residence, photographing them, and uploading them to the server.

The source identified the individual as “Jack,” saying that he lived in Massachusetts and was in the Air National Guard. The source described him as a white male, clean-cut, and between 20 and 30 years old. 

More From Affidavit

Discord, the social media platform, provided the FBI with information identifying Teixeira as the administrator and provided a billing address in North Dighton, Massachusetts. It is the same address Teixeira listed as his primary residence on the paperwork he provided to his employer, the Massachusetts Air National Guard. 

Teixeira joined the Air National Guard in September 2019. He had served since May 2022 as a cyber defense operations journeyman with the rank of airman first class, stationed at Otis Air National Guard Base in Sandwich, Massachusetts. He held a top-secret security clearance and, since 2021, had had access to highly classified programs.

On April 6, the day The New York Times broke the story, Teixeira used his government computer “to search classified intelligence reporting for the word ‘leak.’” That is significant because it tends to show his consciousness of guilt or, at the very least, his concern that now the documents he posted to Discord were being investigated by authorities.

The affidavit states that government authorities believe Teixeira “was searching for classified reporting regarding the U.S. Intelligence Community’s assessment of the identity of the individual who transmitted classified national defense information to include” the classified document about troop movements in the Russia-Ukraine war.

The complaint doesn’t do justice to the scale and scope of the accused’s activities. That’s where the reporting by The Washington Post and The New York Times comes in.

More to Story

The Post and the Times interviewed several members of the invitation-only Discord chat room that was administered by Teixeira. Formed in 2020, the group of two dozen men and boys exchanged thoughts, texts, and ideas about guns, military gear, and God. 

Teixeira, who was known to the group as “OG,” began posting messages with strange acronyms and military jargon. OG told the group that he had access to government secrets that were being withheld from the public, and he provided what appeared to be verbatim transcripts of secret U.S. government documents for months. He also lectured the group about world affairs and insisted that he was providing them with information to keep them “in the loop.”

According to interviews conducted with members of the now-defunct group by The Washington Post, OG posted transcriptions of myriad subjects, from the whereabouts and movements of high-ranking officials to tactical updates on military forces and more. Last year, Teixeira got angry with the group and stated, in so many words, that if group members were not going to react to his posts, he would stop sending them.

Late last year, according to the affidavit, Teixeira started sharing photographs of classified documents and posted them on the Discord server for his group to see. The documents—many of which The Washington Post and The New York Times claim to have but haven’t published—apparently include American and NATO plans for building up the Ukrainian army, intelligence assessments of Ukraine’s air defense system, reports of internal disputes inside the Russian government over its losses, and other detailed reports on the war.

According to the Times, other disclosures include how a Russian jet fired a missile at a manned British aircraft flying over the Black Sea; an intelligence assessment on why U.S. officials believe China was close to sending weapons to Russia; a document indicating that South Korean officials were concerned that the United States might divert weapons from South Korea to Ukraine; and how a hacking group tied to Russia may have compromised a Canadian gas pipeline. 

Other documents apparently provided insights into Israel’s foreign intelligence service; how the Wagner mercenary group, led by an ally of Russian President Vladimir Putin, is thriving around the world; and other documents related to the depth of U.S. knowledge about Russia’s security and intelligence services. 

Potential Charges

At this point, there is no way of knowing the number of documents that Teixeira is accused of copying, downloading, or posting to the Discord chatroom or other platforms. We have no information—at least based on what has been reported—that suggests that Teixeira gave documents to other people, or that he was acting at the behest of a foreign government or malign influence. 

Leak investigations are overseen by the Justice Department’s National Security Division and conducted by the FBI. Now that Teixeira is in custody, and with several members of the Discord chat room seemingly cooperating with the government, the investigation will focus on the sheer number of documents he is accused of illegally transcribing, downloading, printing, or taking from his workstation.

The investigation also will probe the number of documents posted to Discord or any other platform, and any other illegal acts he allegedly took related to the retention, removal, or transmission of national defense information.

The Post and the Times also reported that the accused took evasive actions after becoming aware that authorities were on to him. So, in addition to the charges outlined in the criminal complaint, Teixeira might be charged with obstruction of justice. 

Given the nature of some of the disclosures in the documents, Teixeira also might be charged with violations of 18 U.S.C. § 798, which makes it a crime, subject to imprisonment for up to 10 years, to disclose “communication intelligence activities of the United States or any foreign government.” 

Next Steps

Once indicted, Teixeira will be formally arraigned in court. At that point, the judge assigned to the case will lay out a schedule for discovery, pretrial motions, and the trial itself.

That’s when things will get interesting, because in national security cases, the government is less inclined to go to trial than in other criminal cases. That’s because the information the government likely would have to present in court potentially could further expose national security secrets, including sensitive sources and methods. Defense attorneys who specialize in such matters know this and try to leverage it to obtain a favorable plea deal for their client.

Although Jack Teixeira, like all other defendants, is presumed to be innocent unless and until proven guilty beyond a reasonable doubt in a court of law, this case doesn’t appear to be a whodunit. It appears to be more of a case of “What did he do, and how bad was it?”

How the government can prevent someone else from doing something like this is a topic, albeit an important one, for another day.

This piece originally appeared in The Daily Signal