This transcript was automatically generated and might contain errors.

[0:00] Dori Berenstain: Welcome to Episode 16, The Winner Family Reacts to the FBI Raid on Mar-a-Lago.

[0:06] Dori Berenstain: On August 8, 2022, the FBI seized over 300 classified FBI and CIA documents held by Trump at Mar-a-Lago, including many top-secret documents compromising national security. We are now hearing that Trump is withholding even more documents. In February 2017, Reality Winner was charged with leaking one government document proving Russian interference in the 2016 election. Calling Reality a terrorist and convicting her under the Espionage Act of 1917 was the Trump administration's way of saving face and burying the truth. Reality received the longest prison sentence ever imposed for the unauthorized release of government information, five years and three months. And it's important to remember, Reality did not leak U.S. secrets to a foreign enemy, nor was she seeking any personal benefit whatsoever. Reality had a singular goal, to help protect democracy. I'm Dori Berenstain, and I'm Sally Horchow, and this is Reality.

[1:27] Dori Berenstain: In today's episode, we speak to Reality and her mother, Billie Winner-Davis, about the FBI raid on Mar-a-Lago and how the current events have impacted the family. Despite the irony of the situation, Reality remains focused on speaking out against the Espionage Act and how this archaic law should be reformed.

[1:46] Reality Winner: The biggest issue with the Espionage Act is that at the time it was written, it was really obvious what national defense information was. It was troop movements, submarine locations, weapon systems, very simple, cut and dry. In the past hundred years, you know, what about cyber? What about military intelligence? What is national defense information? And our legal system has simply never caught up with giving the government the burden of proof to define what national defense information is. So that is how they view 793E, the Espionage Act, under which I was charged, because it doesn't say classified information. And that's why this is such an unjust law.

[2:32] Reality Winner: We've already seen in the past four years alone, extreme discrepancies in how a judge chooses to proceed when the Espionage Act is invoked within their federal district. In my case, the judge asked the prosecution point blank, how do we proceed? So if you're in a football game and the other team is telling the ref how to hold the match, well, obviously they're going to win. There is a misdemeanor for mishandling classified information. And many times when classified information is mishandled, it's seen as a workplace violation. So it's handled within the agencies themselves, and it's not a criminal justice affair. However, if they choose to say what information was violated or what was disclosed is this arbitrary phrase, national defense information.

And if they can get an indictment for it in the criminal case moving forward, the defendant has no right to question if what they actually disclosed was national defense information, mens rea or criminal intent. This is one of the few laws in our country in which no criminal intent must be proven by the prosecution. So it doesn't matter if you did something good, if Congress says, hey, we actually never would have seen that information. Or if, you know, you caused a shit show and something burned down. Those two outcomes are treated equally under the same court of law. And that makes this law arbitrary and political in nature. And it is an unjust law.

[4:14] Billie Winner-Davis: For Billie, the fact that Trump is being investigated for the same crime is almost beyond comprehension. He played a part in what happened to Reality. He knew what was happening. You know, he's the one that said that he was going to, you know, clamp down on whistleblowers, that he was going to clamp down on leakers, that he was going to tighten up how people who mistreated or mishandled classified information were treated. You know, he said all of those things. And Reality was the very first person that was prosecuted under Trump for the release of classified information. When I first heard that the search warrant used the same espionage charge in it, you know, that just really hit me because and then finding out that Trump had over 300 documents and he refuses to give them back, you know, we don't know what he's done with these documents.

We don't know what Trump's intentions are for these. So the espionage charge on Trump almost seems more appropriate for Trump, for his situation than it ever did for Reality in her one single document that she printed, took out of the NSA and mailed to a media outlet so that America would have the truth. What Trump did was steal from the American people documents that he knew he was being advised by everyone around him that these documents didn't belong to him. And I would hope that Biden would look at that and kind of compare it, compare it to what happened to Reality Winner and compare what she did versus what's going on right now and say, wait a minute, you know, I think the Department of Justice got it wrong when they charged Reality Winner under the Espionage Act. And I think that she deserves her life back.

[6:14] Billie Winner-Davis: One example of that inequity in prosecution under the Espionage Act is the case of Daniel Hale, a former U.S. Air Force intelligence analyst currently in prison for releasing top secret documents on the government's drone program. Daniel revealed the highest civilian casualties from drone attacks and was arrested in 2019. He was released on bail until his sentencing. Reality was never given the opportunity to be released on bail. So last summer, when they sentenced Daniel Hale, they offered him the Reality Winner special of 63 months. And he turned it down. He said, I'm going to plead guilty and I'm going to let the judge decide. And federal judges are bound by federal guidelines and his federal guidelines started at 80 months.

So he was looking at far more time than me. And instead, the judge independently, on her own, chose to give him 46 months. It was a court in Alexandria. They do a lot of national security cases up in that area. And so the judge had experience. And she said, this was national defense information. He leaked it. But there were no lives lost. There were no sources and methods lost. And she weighed that against the sentence. This is not the first time that this has happened, that the legal system has had a stark discrepancy between how I have been treated as a young woman versus how any other man was treated.

[8:13] Reality Winner: In the year since my arrest, two other men both made multiple leaks, multiple disclosures. And in fact, one of them did release national defense information because it had to do with United States positions in Iraq and Afghanistan. And both only received one count, even though it was multiple documents over a period of time to the intercept. And both of those men got less time than me. And both of those men were released on bail. Billie explains how Reality's lack of political and financial power influenced how she was prosecuted under the Espionage Act.

[8:29] Billie Winner-Davis: She didn't have money. She wasn't known. She was, you know, a lowly NSA contractor. And because of that, they were able to get away with what they did to her, you know, as far as the immediate arrest, the denial of bond, the denial of her basic rights, you know, with regard to her trial. You see other people who are, you know, higher up, like General Petraeus, and he just got a slap on the wrist. And you saw all of the people that were within Trump's orbit basically getting off without having to pay or be held accountable for their crimes. And that just seems to be the way that our system is set up. Our system is set up so that if you have connections or money, you can kind of buy your way out of trouble.

Whereas if you don't have that, then the government can just do whatever they want to you and they can run over you because you don't have, you know, those connections and that power. And really, nobody cares. And that's a really sad thing for our criminal justice system. It should be fair. It should be regardless of who you are, who you know, or how much money you have. It should never be a system where you can buy your way out of accountability.

[9:51] Billie Winner-Davis: And yes, if Trump is not held accountable, I don't even know how I'm going to feel. Based on the DOJ's inconsistencies in prosecuting the Espionage Act, Reality believes it's not hard to predict how Trump's case will be handled.

[10:07] Reality Winner: Obviously, Donald Trump is going to get better treatment. So this is not a surprise at all. I've already seen what the Justice Department, who the Justice Department deems important and whose lives actually matter, according to the DOJ. And it's not women's lives. I would say that definitely they're choosing the General Petraeus method of not holding Trump accountable. I would like the conversation to be about the Espionage Act. I would like it to be in regards to, you know, my friend Terry Aubrey, who definitely did not release national defense information. And his case actually has a very unique racial component because he disclosed that the FBI were targeting black communities and basically sending him in to infiltrate majority African and black mosques in large cities, despite there being no evidence of terrorist activity or extremism originating at these mosques. And the racism that he encountered.

[11:08] Reality Winner: Being a Black FBI agent, you know, he said that he joined to decrease crime. He thought he was actually going to help be part of the force that prevents the next September 11th on American soil. And instead, he was profiled himself and then sent into Black communities to spy on innocent Americans. And when he disclosed that, he was treated just as harshly as I was. Even though he got, you know, pretrial bond, he still got almost four years in prison for that. And he's actually on probation right now, too. He was treated probably more harshly than like Daniel Hale was treated. And in his family history, like one of his uncles was a Black Panther. So you just know, like the way the FBI has come down time and time again upon Black communities, that that was a huge part of this. So, yeah, I would love there to be more discussions about the Espionage Act and how it's used and how race, class, and gender determine who has a chance against the Espionage Act.

[12:07] Reality Winner: When I was arrested in 2017, there was pressure within the Justice Department to go after whistleblowers and leakers. It was all well documented by former FBI Director James Comey, who said in a memo to the president, quote, about the value of putting a head on a pike as a message, unquote, to leakers of classified information. I ended up being that example. When I was tried, the D.A. and the lead prosecutor, as well as the FBI agents that arrested me, knew in 2017 all they wanted to do was catch leakers. And that was a career stepping stone. By the time I was sentenced, when Trump said, you know, this is small potatoes, this isn't a victory, not one of those people actually got a promotion because of my case. In fact, the D.A. recently stepped down and he had a demotion, you know, and neither of those federal judges moved up. I mean, you could tell at the time that I was going to be everybody's career stepping stone. And that's not how it worked out.

[13:11] Reality Winner: We asked Reality to predict the outcome of the Trump investigation, and her answer was surprising. I think the hardest thing about this is I've always been very independent and I don't fit into a box. And when you have such extreme partisan media, they need somebody who fits neatly into each box. For example, when I did an NBC interview a couple of months ago, when the documents were found at Mar-a-Lago and this case was big and the Espionage Act was being thrown around, everybody wanted me to say, oh, it's not fair. He should be locked up right away. And it's like, well, okay, well, I spent four years in prison and became a prison abolitionist. And I'm not going to be a hypocrite about it just because Trump isn't my favorite human on the planet.

You know, and I've only asked for reform of the Espionage Act so that it's not an oh, you're found with one classified piece of paper, you're in jail and you're going to suffer in these unimaginable conditions until the government decides to have mercy on you. That's never how I've wanted the Espionage Act to work. I don't want it to work for my best friends and I don't want it to work for my enemies like that.

[14:17] Reality Winner: Over the course of the 30-minute interview, they asked me eight different ways to see if I would say, you know, the three magic words. It's not fair and I'm sorry, but I don't think this is an imprisonable action unless lives are lost. And even then, I'm not like a life sentence person. Incarceration should only be for damage control to stop the damage in its tracks. And then it should focus on putting that person on the right track. I just don't believe in that anymore because it's only increased the crime rate in this country. The way we incarcerate people in this country would be to have the safest nation in the world if our prisons weren't breeding grounds for violence and aggression. So of course I don't wish that upon anybody.

Even if Donald Trump is in violation of the Espionage Act, I do expect the government to have just as high of a burden of proof that each one of those classified pages was in fact national defense information. That it was not only retained or willfully retained, but disclosed to somebody. And so they have to have hard evidence of that.

[15:21] Reality Winner: In my case, they had hard evidence because they started with the document that was disclosed and then it went back to me. They didn't search my house and find classified information that hadn't yet been disclosed, you know. So in my case, I did every single word of 793E with a question mark behind national defense information, which I later pled guilty to, you know, I did it. I did the crime. So I just expect them to have the same burden of proof that I wish that had been shown to me in my case. However, Billie has a different opinion.

[15:54] Billie Winner-Davis: I want him to suffer the way that she suffered and I want him to know that he did this to her. And here he is doing so much worse than she ever did. I want him to feel what it's like to have to be held accountable for that. I want accountability in this as well. I'm worried about what he has done with this information that he's had all of these months. You know, he's had all of these documents for so long. I don't know what he's done with them. And when you talk about how they had said that Reality caused serious harm to our national security, she did not. But what has Trump done with this information? He's the one that is creating serious harm to our national security. He's placing lives in danger. Reality never did that, but he is, you know, and therefore I feel like he needs to be held accountable. And I just wait for the day when I turn on the TV and I see that he's been arrested.

[17:03] Billie Winner-Davis: Revisiting what Reality went to, you know, you guys put on the play, Is This a Room? And you think about that, that day ended her free life. You know, why is he still free? You know, after they've known all of these months that he had these documents and they've asked him to return these documents and he returned some of the documents. His lawyer said that that was all of them, but that wasn't the truth either. And he's hung on to these documents and all of this top-secret information. Why is he still free? Reality Winner was not free. She was even denied bail three times, you know, saying that she was a flight risk and she was a danger to society. You think back to that, Reality spent 1459 days behind bars.

She was never given an opportunity for freedom or to be able to defend herself. And here we have this man who did 300 times worse than what she has done. And he's still free to this day. And you have people saying that they're going to start a civil war if he is indicted. This is so, so scary to me. And it's just, it's so unequal. There's no equality in our justice system. I've always said, you know, that what Reality did was against the law. She did. She broke a rule. She broke the law. She knew she wasn't allowed to take that document out of the NSA. She knew that she wasn't supposed to give it to anyone without the top-secret clearance like she had. She knew that and she did it anyway, but she did it for the American people.

[18:59] Reality Winner: With the knowledge that it's become even more treacherous for whistleblowers since her imprisonment in 2017, I look back at my decision to leak the document to The Intercept. So what I had intended was for this document to be a litmus test for people to look at their media more critically. It wasn't like this anti-Trump temper tantrum. It was, what if the American people were to see one set of facts in black and white on a piece of paper, see what the opposition media is deciding to pull from that piece of paper, but also what their media is deciding to pull from that piece of paper. And it was supposed to kind of break the glass, the spell that partisan media had over the country in 2017. And I know we're all like numb to it now, but in 2017 it was like, this is really bad.

Like, this is, you know, it's only gotten worse since then. And that's what I thought would happen. And unfortunately, the media disappointed me even further by taking the lowest hanging fruit, which is the scandal of who Reality Winner is and how weird her name is. And, oh, she was wearing pantyhose and she's running around the yard or, you know, what is Reality Winner doing on her Facebook? That's what the media focused on. And that's why they moved on so fast. That's why this wasn't regarded as a case in which the character of our nation was on trial.

[20:30] Billie Winner-Davis: In our next episode, we talk about Reality's most recent plea for clemency and what she's most looking forward to in the future.

[20:44] Host: We're incredibly grateful to our special guests, Reality Winner and Billie Winner-Davis. Reality's interrogation by the FBI was captured in the critically acclaimed Broadway play, Is This a Room? Conceived and directed by Tina Satter. This podcast is created, written, and produced by Dori Berenstein, Sally Horchow, and Rebecca Aparicio and the Broadway Podcast Network. Sound engineers are Alan Seals and Kimberly Garris. Editor is Alan Seals. Executive producer is Liz Armstrong. And a giant thank you to the team at the Broadway Podcast Network for their tremendous work on This Is Reality. Kimberly Garris, Bea Westby, Michaela Brewster, Maddie Page, Ethan Nienaber, Allison Arnes, Andrew DeWolf, and Eli Tokash.

This Is Reality is part of Gotham's fiscal sponsorship program under the Sound and Light Project. You can take action to help pardon Reality by signing the petition at standwithreality.org. For more information, visit bpn.fm/ThisIsReality. And make sure to check out all the podcasts on the Broadway Podcast Network. And please join us for the next episode as the story unfolds on This Is Reality.