TAMPA, Fla. — What’s the proper penalty for the retired Air Force intelligence officer who kept more than 300 classified defense documents among his personal belongings?
A federal judge mulled that question Monday as Robert Birchum stood before her for sentencing.
A prosecutor wanted 6 1/2 years in prison. A probation investigator recommended four. Birchum’s defense attorney asked for probation only.
U.S. District Judge Kathryn Kimball Mizelle couldn’t decide. She said she wanted more time to research the handful of similar cases that have come before other courts, and their resulting sentences.
Amid the legal tug-of-war came mention of cases involving “other prominent individuals.” They weren’t mentioned by name, but Birchum’s defense attorney in a sentencing memo alluded to investigations involving classified material held by former President Donald Trump, former Vice President Mike Pence, former Secretary of State Hillary Clinton and current President Joe Biden.
Assistant U.S. Attorney Cherie Krigsman mentioned the comparison. But she could not offer any insights, she said, because none of those scandals has produced federal charges or sentences.
Defense attorney Eric Roper also alluded in the sentencing memo to the cases of former National Security Adviser Sandy Berger and retired U.S. Army General and CIA Director David Petraeus, who both received fines and probation sentences for mishandling classified material.
Krigsman noted that Berger and Petraeus both pleaded guilty to misdemeanor charges, but that Congress in 2018 made the retention of classified material a felony.
Birchum is due back in court June 1.
The career airman once served at Special Operations Command at MacDill Air Force Base. He pleaded guilty earlier this year to a charge of unlawful retention of national defense information.
Standing before the judge Monday in a formal Air Force uniform, Birchum clutched a lectern and sobbed. He offered apologies and explanations. But he also questioned the vigorousness with which he’d been prosecuted.
“There was no malicious intent,” he said. “And I did not disclose the information to any unauthorized individual.”
Birchum, 55, served in the Air Force for 29 years, retiring at the rank of lieutenant colonel in 2018. As a military intelligence officer, he was trusted to handle classified information while working at the Joint Special Operations Command at MacDill Air Force Base, and the Office of the Director of National Intelligence.
Some of the information he had access to included details about Defense Department locations throughout the world, explanations of the Air Force’s capabilities and vulnerabilities, and methods they use to gather and transmit intelligence, according to court records.
In court, it was revealed that Birchum’s wife, Cristina, in 2017 discovered a classified document while looking through her husband’s belongings for a photo of his son. She brought it to the attention of the Air Force, the defense lawyer said. A civilian intelligence analyst, she had her own security clearance revoked and was suspended without pay as a result of the investigation.
Investigators later searched the home and seized a thumb drive, a Dell hard drive and numerous paper documents. The items contained hundreds of pieces of information relating to national defense, including some labeled “Top Secret” and others labeled “Secret.”
The top secret designation is applied to information that is considered so sensitive that its release could be expected to cause “exceptionally grave damage” to national security, according to court records.
The files included presentations from the National Security Agency detailing the organization’s capabilities, methods of intelligence collection and identifying target’s vulnerabilities. A further search turned up an additional hard drive in Birchum’s overseas living quarters, which held more than 100 classified files that were designated top secret, secret and confidential. A search of a storage pod in the driveway of Birchum’s Tampa home turned up 28 more files deemed “secret.”
The release of such information could put lives and America’s allies at risk, Krigsman said. The prosecutor suggested the reason Birchum retained the information was rooted in “hubris.” She accused him of flouting rules and substituting his own judgment for that of his superiors.
“He abused the trust the Air Force bestowed upon him,” Krigsman said.
Mizelle, who was appointed by Trump near the end of his term, questioned why it took six years for investigators to bring a criminal case against Birchum.
Krigsman cited several factors, among them the detailed process federal investigators took to pin down the original classification of many of the documents, which originated from different agencies.
“These cases are hard and complicated to work,” she said.
Roper, the defense lawyer, said the last documented investigative steps were completed by the Air Force in 2017. The military declined to pursue a criminal case at court martial. Birchum received an administrative censure from the military before an honorable discharge the following year.
There was no evidence that Birchum had a nefarious motive for keeping the documents, Roper said. Ever since, he has lived with the constant anxiety of potential criminal charges.
His attorney noted Birchum’s many combat deployments, and the toll that his service has had on his mental health.
Birchum met his wife when they both worked at the Pentagon in 2001. They were there on Sept. 11, when a hijacked airliner slammed into the building. She wrote a letter of support for him ahead of the sentencing hearing.
He completed several missions in Iraq and Afghanistan. He twice tried to end his life, according to a sentencing memo. He was twice held for an involuntary examination under Florida’s Baker Act, and was given psychotropic medications, the memo stated. He continues to struggle daily with service-related disabilities, the memo stated.
Prosecutors noted that Birchum signed non-disclosure agreements throughout his career, acknowledging that he understood the responsibilities and requirements of handling classified information, including precautions he had to take to ensure that such material did not fall into the wrong hands.
In court, though, he claimed his retention of the items was due to “a series of mistakes on my part.”
He mentioned changes in security procedures. He spoke of having memory problems, and psychological struggles.
It’s a challenge, he said, for him to get out of bed each day.
“There is a saying at the V.A. — to get out of hell you must go through misery,” he said. “Well I’ve been stuck there a long time. And I’m still stuck.”
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