The Work

December 17, 2008 8:28 PM

Venable Sticks Up for DOJ Whistle-blower

Posted by Brian Baxter

Be they Daniel Ellsberg and W. Mark Felt, or Jeffrey Wigand and Sherron Watkins, whistle-blowers are often tortured souls. And then there's the subsequent legal problems.

Michael Isikoff's excellent cover story in this week's edition of Newsweek chronicles the tale of Thomas Tamm, the former Justice Department lawyer who tipped off The New York Times to a highly classified--and likely illegal--National Security Agency spying program that didn't require warrants from the Foreign Intelligence Surveillance Court.

Tamm's phone call to a Times reporter a year before this story was published on December 16, 2005, brought about the end of his Justice Department career and the beginning of a legal limbo from which he has yet to emerge.

Venable partners Asa Hutchinson--a former director of the Drug Enforcement Administration and undersecretary at the Department of Homeland Security--and Paul Kemp are representing Tamm in an ongoing Justice Department and FBI investigation into whether Tamm committed treason by disclosing national security secrets. (Kemp once represented former government microbiologist Bruce Ivins, who was questioned by the FBI with regard to the 2001 anthrax attacks.)

"We first met with the Justice Department in February 2007," says Kemp, adding that the firm was retained by Tamm about a month or so earlier. "Since then we've been waiting for them to do something, and while they haven't convened a grand jury for our part of the case, they still haven't dropped the investigation."

In fact, Kemp says, Justice Department and FBI investigators have been interviewing individuals close to Tamm as part of their leak investigation as late as last week. It's a process that's continued since August 1, 2007, when FBI agents raided Tamm's suburban Maryland home, seizing computers, documents, and, as Isikoff reports, even his family Christmas-card list.

Kemp says that Tamm likely won't know whether or not he'll be formally charged until after President-elect Barack Obama's administration takes office next year.

The Venable partner says he got to know Tamm when he defended cases against the former state and federal prosecutor. (Prior to his Justice Department career, which included stints in the Capital Case Unit, Office of Intelligence and Policy Review, and as an assistant U.S. attorney, Tamm worked for 20 years in the state's attorney's office in Montgomery County, Md.)

Tamm himself now struggles to earn a living volunteering for a local public defender and handling some wills and estates work. With his mounting legal bills a constant worry, Tamm has set up his own legal defense fund.

Asked if it bodes well that President-elect Obama and U.S. attorney general in waiting Eric Holder have decried the NSA's secret spying program, Kemp hesitates.

"I'm certainly hopeful, but I can't definitively say that Tom's not going to be charged," Kemp says. "In Tom's mind he was reporting a felony in violation of the Constitution, so that's why he did what he did, and we certainly hope the attorney general designate takes that into account."

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Many of us are interested in donating to the Tamm defense fund but need to verify that the fund is real as well as request that there be an on-line method for donating instead of snailmail.

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