A team of defense attorneys representing a former journalist accused of stealing and leaking materials from Fox News Media have asked for a government’s appeal over some tossed criminal charges to be dismissed after prosecutors delayed a critical filing in their ongoing court case.
The appeal was opened last year after a federal judge dismissed around half of the criminal charges lobbed against political consultant and former Deadspin video editor Timothy Burke, who was charged through a grand jury indictment two years ago for working with another man to scour the Internet for credentials used by sports leagues and broadcasters.
A set of credentials found by the men allowed Burke to access and record raw video transmission from various Fox News shows, including a program hosted by Tucker Carlson. Burke later leaked the clips to two news outlets — Vice News and Media Matters for America — selling the stolen clips to one of the organizations.
Lawyers representing Burke do not deny his actions, but said they were examples of good digital journalism. Federal prosecutors contend Burke broke various computer hacking and criminal conspiracy laws.
Those same prosecutors have asked an appellate court to delay a deadline for their opening brief supporting the reinstatement of some charges against Burke, according to court records reviewed by The Desk. The latest deadline for the opening brief came toward the end of July, but prosecutors again petitioned the court for an extension due to procedural issues.
Specifically, prosecutors say the Office of the Solicitor General has not authorized the government to move forward with its appeal, and it isn’t clear if that office will do so.
The original case against Burke was brought under the Biden administration and was allowed to proceed in the lower court by the Trump administration after all necessary approvals carried over. But an appeal requires a separate sign-off from federal officials, which prosecutors in the Florida district where the case is brought have yet to obtain.
The lack of authorization from the Office of the Solicitor General is the key reason why the government’s opening brief has yet to be delivered, prosecutors wrote in court filings.
Meanwhile, the overall case against Burke remains in limbo — a lower court paused proceedings until the appeal could be heard, and Burke still faces more than a half-dozen criminal counts related to computer intrusion and conspiracy that could earn him serious prison time if convicted.
But the case becomes tougher for the government to prosecute because the delays at the appellate court, coupled with the lower court’s decision to pause proceedings against Burke on the remaining counts, means the former journalist could argue that his due process rights are being violated, since he is entitled to a speedy resolution under the law.
Last month, Burke’s legal defense team argued as much when they filed a motion to dismiss the appeal on the dropped charges, saying the government’s promises that they are “working diligently” on the matter aren’t good enough.
“Regardless of whether the Tampa prosecutors want to proceed, there is no record upon which this court may rely that the Office of Solicitor General is diligently prosecuting the appeal as required (by law),” Michael Maddux, a member of Burke’s legal defense team, wrote on July 31. Maddux said extensions are rarely granted, except upon a finding of good cause, which can no longer be argued here given the government’s delays and admissions.
Burke remains out of jail largely on his own recognizance, though he cannot travel beyond the defined boundary of the federal district where the case is being prosecuted without court approval and was at one point required to undergo mental health treatment and submit to random drug testing.
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