Key Points
- Federal prosecutors have delayed an appeal in the criminal case against former Deadspin editor Timothy Burke by requesting multiple extensions to file their opening brief.
- The U.S. Department of Justice said it cannot proceed without approval from the Solicitor General, effectively pausing the case while Burke remains under legal restrictions.
- The case stems from allegations that Burke obtained and used login credentials to access internal video feeds from broadcasters, raising broader concerns about press freedom and the legal boundaries of newsgathering.
Federal prosecutors have prolonged a critical appeal over an unfavorable decision in a former journalist’s criminal hacking case by seeking numerous extensions to file their opening written arguments in the case, according to court records reviewed by The Desk.
The appeal was filed last year after a federal judge in Florida dismissed more than a half-dozen criminal counts against former Deadspin editor Timothy Burke, who is accused of conspiring with a man in Washington state to obtain and misuse login credentials to online systems connected to television news broadcasters.
Burke was originally charged with 14 criminal counts ranging from conspiracy to computer trespassing, but a lower court tossed seven counts that were primarily related to wiretapping following strong objections by free speech groups.
Burke, who now works as a freelance political consultant and has since endeared himself to the “journalist” label in order to win public support for his case, continues to face years in prison if convicted on the remaining charges, but his legal case has been suspended while prosecutors appeal the lower court’s order on the wiretapping allegations.
That appeal was filed in November, and the government’s written brief arguing their case against the lower court’s order was due within weeks, according to court records reviewed by The Desk. But the U.S. Department of Justice (DOJ) has sought, and received, numerous extensions that have effectively paused all proceedings in the matter while prosecutors await approval from senior members of the agency, the records show.
In their most-recent request for a delay, prosecutors said the DOJ’s Office of Solicitor General has yet to sign off on the appeal, which leaves them unable to write or file a written opening brief. It wasn’t clear when the DOJ brought the matter to the Solicitor General or whether the office will approve the appeal.
In a motion to oppose the government’s request for an extension, Burke’s legal team said federal prosecutors had ample time to receive all necessary sign-offs and should have filed their written brief months ago. They contend that the government’s request only further delays the proceeding, all the while Burke — who is not in custody, but has restrictions on his travel and computer use — remains in legal limbo.
Under long-standing policy, federal prosecutors were supposed to receive approvals from senior officials at the DOJ before starting a criminal investigation or proceeding against a journalist, Burke’s legal team notes. Those sign-offs were reasonably received before prosecutors brought their case against Burke, so it isn’t clear why the government is now struggling to obtain approvals, they contend.
“This is not merely a scheduling dispute,” Michael Maddux, a member of Burke’s legal team, wrote in a motion as viewed by The Desk. “The government has chosen to use a novel and unsupported legal theory to prosecute a journalist for acquiring and publishing information of public interest, which both prevents and deters him and others from engaging in constitutionally protected activities, and then uses the fact that their theory is novel and has broad based implications for freedom of speech and the press…to justify continued delay.”
A federal judge ultimately approved the government’s most-recent request for a delay, pushing the deadline for their written brief to the end of July.
The DOJ’s investigation into Burke began in 2022, after executives at Fox News Media contacted federal law enforcement when two news outlets began publishing unaired material related to some of their news and commentary programs. Those clips include a portion of an interview conducted between former Fox News host Tucker Carlson and rapper Kanye “Ye” West, and another clip in which Carlson disparages a Fox News-operated streaming service.
Investigators later determined that Burke and Washington resident Marco Gaudino had obtained login credentials that were accidentally published to the website of a CBS News Radio affiliate, then misused those credentials to access a service operated by a technology company called LiveU, according to court records and sources who spoke with The Desk. That access allowed Burke to watch and record live, united video feeds normally intended for the internal use of broadcasters.
After seizing numerous computers, hard drives and other materials from Burke’s home in 2023, federal investigators determined his activities with Gaudino were not a one-off practice. Instead, they found material that pointed to Burke collecting unedited video transmissions from a number of broadcasters and media stakeholders, including CBS News, the National Basketball Association (NBA) and FedNet.
Burke has plead not guilty to all charges, including the ones that were dismissed and are central to the government’s appeal. Gaudino entered into a plea deal with prosecutors and was sentenced last year.
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