James J. Smith explained to a federal judge Wednesday morning why he was pleading guilty. But the former FBI counterintelligence agent didn't mention any of the classified documents prosecutors had charged him with mishandling-the acts of negligence that allegedly allowed accused Chinese double agent Katrina Leung to photocopy and possess national security information.
Instead, Smith merely described his relationship with Leung, the asset he recruited to assist the FBI with its counterintelligence operations.
"In 1983, I began a sexual relationship with her and that relationship continued until December of 2002," Smith told U.S. District Judge Florence Marie Cooper, as Smith's wife and son looked on in court.
Then, Smith continued, he concealed the affair when asked during an August 2000 FBI security review whether there was anything in his background that could affect his judgment or ability to work with classified information.
"My response was, 'No, there isn't anything in my background,'" Smith recounted.
Outside court Wednesday, Smith's attorney Brian Sun stressed that lying to the FBI about the Leung affair is the only thing his client pleaded guilty to. Gone, he added, are the charges that Smith had harmed the national security of the United States by negligently handling classified documents.
"All that has been dismissed," Sun, a partner at Jones Day in Los Angeles, said of the plea agreement reached with federal prosecutors.
Leung's attorneys, in a statement later in the day, expressed support for Smith while lambasting the entire prosecution.
"[T]he FBI has tried to protect its own and shift blame for their mistakes to Katrina, an outsider, a Chinese American, and a woman," wrote Janet Levine and John Vandevelde of Lightfoot, Vandevelde, Sadowsky, Medvene & Levine.
Thom Mrozek, a spokesman for the U.S. attorney's office in Los Angeles, declined to respond to the charge. An FBI representative said the bureau was referring all calls on the plea deal to Mrozek.
As part of the agreement, Smith has pledged to assist in the prosecution of his former lover, who goes to trial in September.
Though described by prosecutors as a double agent for the People's Republic of China, Leung is not on the hook for espionage. She faces federal charges of copying and possessing national defense documents with the intent to harm the United States.
Leung allegedly photocopied the documents Smith had during their illicit encounters when Smith was using the bathroom or taking a smoking break.
Her attorneys have said that Leung, code named "Parlor Maid," was acting at the behest of the FBI in performing her role as an asset.
When announcing Smith and Leung's arrest in April 2003, Debra Yang, the U.S. attorney for the Central District of California, said that Smith's negligence undermined the government's commitment to national security.
"When our intelligence agents and the assets they work with fail to maintain this same commitment, we will aggressively address their misconduct," Yang said.
In the ensuing media frenzy, intelligence experts labeled the Leung debacle one of the worst espionage catastrophes to ever hit the United States.
Given this context, Sun, who was joined by co-counsel Paul Murphy of Murphy Rosen & Cohen, said the plea agreement was favorable. The attorneys explained that their client faces a sentencing range between zero and six months.
Sun said he preferred to talk only about what his client pleaded to and declined to speculate on whether Smith jeopardized the national security of the United States by concealing his affair with Leung.
"He is happy to have this behind him," Sun said.
Smith could avoid prison if prosecutors are satisfied with his cooperation in continuing criminal matters. The plea agreement requires Smith to withdraw from any "joint defense agreement" with Leung and prevents him and his attorneys from disclosing to Leung's team any new information they learn as a result of the cooperation.
Cooper set Smith's sentencing for January, several months after Leung's trial is scheduled to begin.
The count that Smith pleaded guilty to was recently added to the case in a superseding indictment filed in February. Sun smiled when asked if the new charge was brought so that he and the prosecutors could iron out a plea agreement around that less serious charge.
"You'd have to ask the prosecutors," Sun said.
Assistant U.S. Attorney Rebecca Louergan directed inquires made after Wednesday's hearing to Mrozek. He said the superseding indictment was not a tactic to facilitate a plea agreement with Smith.
Sun told reporters outside Cooper's courtroom that Smith's trial would have involved competing theories on whether the documents Smith took from FBI offices contained sensitive information. However, the defense attorney declined to comment on the nature of these documents on Wednesday.
Perhaps hinting that prosecutors didn't want to turn over any more classified discovery information to the defense, however, Sun noted that the agreement came just a week before his team was going to seek additional classified documents in a closed hearing.
"You can draw your own inferences," Sun said.
Mrozek declined to respond.
Levine was present for Wednesday's hearing but did not take questions at its conclusion. Instead, she and Vandevelde issued a statement.
"We are happy for James J. Smith and wish him well because, as far as we are concerned, he did nothing worthy of a criminal prosecution, and neither did Katrina Leung," the statement read. "[W]e are confident that this case is much ado about nothing, and Katrina Leung will be vindicated."
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