But Snowden’s trial need not be typical. The Department of Justice and Snowden’s attorneys could agree to conduct it by a slightly different set of rules, rules that would permit the jury to consider the full extent of the alleged governmental wrongdoing he uncovered along with the full scope of his alleged crimes. For example, perhaps as part of an agreement for Snowden to return to stand trial, federal prosecutors could allow him to present evidence about the legality of the programs he disclosed and, ultimately, argue that his actions were justified by the alleged wrongdoing he revealed.
For its part, the government could present evidence of the harm allegedly caused by Snowden’s actions. Then, at the close of trial, the jury could consider whether, on balance, the classified information Snowden disclosed was important enough to the public interest that he should not go to jail for revealing it. These rules would be a departure from the standard practice in federal court. But a judge is likely to allow these procedures if the government and Snowden agree.
More importantly, by taking this approach, the government could place the difficult question of what to do about Snowden in the hands of the jury, which is exactly where it belongs.
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