Marine Maj. Mark Thompson will face court-martial for the second time in his military career early next year, this time for, among other things, allegedly making false statements to a journalist.
Because of that, court proceedings leading up to the trial may involve a third party: Attorneys for The Washington Post, fighting to keep the reporter, John Woodrow Cox, off the witness stand and his unpublished notes out of evidence.
In an arraignment for Thompson on Monday at Marine Corps Base Quantico, it became clear that the officer's civilian defense attorney, Kevin McDermott, planned to challenge the veracity and completeness of reports by Cox that concluded Thompson lied in denying his alleged intimate involvement with a female Naval Academy midshipman during an administrative board of inquiry hearing in 2014. McDermott noted that the Post had recently published 45 minutes of audio interviews with Thompson on its website.
"We think some of the comments and statements have been taken out of context," McDermott told judge Lt. Col. Christopher Greer.
If attorneys do attempt to bring the reporter's notes and testimony into evidence, motions hearings this fall may become a showdown over reporters' rights under the First Amendment: a hotly contested issue that has seen some journalists go to jail rather than give up sources or privileged information.
All but one U.S. circuit court have upheld a concept of reporter's privilege that protects journalists from testifying about confidential information or sources. It's an issue that made headlines in July, when filmmaker Mark Boal sued the government over its threat to subpoena his interviews with Sgt. Bowe Bergdahl, a former prisoner of war accused of misbehaving before the enemy.
But there's a key difference in this case, McDermott told Military.com. Boal's lawsuit, he said, was filed in California, which has strong laws protecting journalists. The same protections, he added, do not apply in this case.
"Because this is a military court-martial on federal property, federal laws on reporter privilege would apply," he said. "Under federal law, there is no privilege. You've got two choices: Turn it over or go to jail."
A spokeswoman for The Washington Post, Shani George, declined to comment on the matter.
Thompson, a former Naval Academy instructor, is charged with false official statement and conduct unbecoming an officer and gentleman. The latter charge includes the specification of giving false statements to The Washington Post, an act that prosecuting attorneys argued was designed to publicly discredit the testimony of the two women who accused him of, among other things, engaging in sexual activity with them while they were midshipmen.
"I think the best analogy is [Thompson] putting up a bunch of pictures or fliers in a neighborhood saying [the accusers] are liars," Maj. Sridhar Babu Kaza told the court in a May fact-finding hearing.
Thompson already served two months and paid a $60,000 fine after being convicted in 2013 of fraternization, indecent conduct, and conduct unbecoming an officer. But he maintained his innocence throughout, and officers concluded at the 2014 BOI hearing that he should be allowed to continue serving as a Marine.
Thompson gave lengthy interviews to The Washington Post in an attempt to clear his name, but an extensive two-part story published in March revealed new evidence -- including text messages from the cell phone of one of the accusers -- that appeared to discredit his earlier testimony.
Kaza said Tuesday that at this point the government does not plan to put Cox on the stand. But McDermott, incredulous, told Military.com he doesn't know how the prosecution will make its case without him. He added that he may subpoena the reporter's unpublished notes and recordings for cross-examination if he does appear.
"For right now, across the board, the lawyers [for The Washington Post] have been routinely telling the government they're not going to make Cox available and they're not going to make available any unpublished material by The Washington Post," McDermott said. "I don't know how [the prosecution will] make the case without being able to authenticate any statement made by my client. They can't just throw newspaper articles in front of a jury."
McDermott extensively questioned Greer in court to determine if he knew about the Post reports about Thompson and if he had been swayed by them. Greer acknowledged he had read the stories, but had not formed an opinion.
"I view that as I view any newspaper article," Greer said. "Not with skepticism, but I don't feel that anything stated in there had to be the truth."
Thompson is expected to appear in court for pretrial motions Sept. 13 and 14. His court-martial is set to begin January 9.