The U.S. Department of Justice is ending its attempt to have an appeals court reinstate criminal wiretapping charges against a former Deadspin video editor who stole proprietary videos from Fox News after trespassing into an online system.
On Wednesday, federal prosecutors filed a motion to withdraw their fight over the dismissed wiretapping charges, allowing the broader criminal case against the former editor, political consultant Timothy Burke, to move forward.
The appeal stems from a lower court’s decision to dismiss a handful of criminal counts against Burke in September after examining whether the charges might violate Burke’s First Amendment rights.
Lawyers representing Burke said he was acting as an independent journalist when he used an improperly-obtained username and password to access an online system identified by The Desk as LiveU Matrix to watch and record raw transmissions of Fox News programming.
Burke later distributed and sold clips of those Fox News recordings to other news outlets, including Media Matters for America and Vice News, which published stories about them. None of the stories credited Burke as the source, but his defense attorneys admitted in court filings that he provided the materials.
The Desk said the username and password obtained by Burke was accidentally published to the website of a CBS Radio affiliate during the coronavirus pandemic. Neither Burke nor his alleged accomplice, a Washington man named Marco Gaudino, worked for CBS News, Fox News or any other media company at the time that prosecutors say the men trespassed into the online systems.
Through his attorneys, Burke denies meeting Gaudino or working with him. Gaudino reached a plea deal with prosecutors and received house arrest and probation for his part in the scheme.
Some press freedom groups and national media companies initially backed Burke following news reports of a raid on his Tampa-area home, but that support eased after Burke was indicted on more than a dozen criminal charges a few months later.
Still, groups like the Freedom of Press Foundation said some of the charges, including the wiretapping claims, were too broad in Burke’s case. By prosecuting him on those counts, those groups said Burke’s case could set a dangerous precedent that would criminalize forms of legitimate newsgathering activities in the future.
A magistrate judge sided with the advocacy groups, finding their concerns were credible and dismissing the wiretapping counts against Burke. Prosecutors initially appealed the dropped charges, but haven’t filed an opening brief in the case for months.
Earlier this year, Burke’s attorneys asked the appeals court to dismiss the case for lack of prosecution, noting significant delays by prosecutors to perform certain procedural requirements, including writing and filing the opening brief. Prosecutors initially defended the delay by saying they were unable to obtain necessary sign-offs from the Office of General Counsel. Last month, the appeals court granted another extension for the brief to be filed.
The motion to dismiss filed on Wednesday still requires the approval of the court, though it is rare for those motions to be denied.
Burke still faces numerous computer hacking and conspiracy charges that could land him years in prison if convicted; that case has been paused while the appeal played out, and will restart once the appeal is dismissed.
A settlement in the broader criminal case seems unlikely: Law enforcement sources who spoke with The Desk last year said public statements made by Burke and his attorneys have ranked many within the Justice Department.
Prosecutors initially offered to settle the case for a significant term of house arrest and probation, with another period of supervised release to follow, during which Burke would be subjected to strict computer monitoring and have restrictions placed on the types of materials he could interact with and download, one source familiar with how the case has developed on the government’s end. But the public statements now have the Justice Department feeling that Burke “needs to be made an example of” and serve “at least some prison time,” the source affirmed.
Among the hardware seized from Burke’s home includes several computers and a cache of hard drives that contain “literally millions of files” on them, the source affirmed. Some of those files show other criminal activity allegedly committed by Burke with his computers that prosecutors have not charged, two sources said.
