by Bryan Denson
Nathan fell into the familiar rhythms of confinement, his hours metered by the movement of food carts, the brightening and dimming of fluorescent lights, and the ceaseless murmur of men’s voices. Now he appreciated the terrible loneliness his dad had lived under all these years. Like Jim, Nathan prayed for a miracle and killed time. He read, played chess, and shot hoops in an open-air gym. He prayed most evenings with other Christians. The meals were a dark comedy. Nathan would recall the stinging taste of noodles kept so long in containers they had fermented.
The day after Nathan’s arraignment, Tom Price and defense investigator Wendy Kunkel paid him a visit to talk about his case. Nathan was completely freaked out. “He was sobbing,” Kunkel recalled, and was astounded to be facing prison time. Nathan told Price and Kunkel that his father promised him their scheme with the Russians wasn’t illegal. “What have I done?” he asked her. “I love this country!” It was clear to Kunkel that Nathan was in deep denial, having failed to grasp that his principle betrayer was his own dad.
The following day, January 31, 2009, Nathan was summoned to the visiting room, where he found Star, Laurie, and her husband, Bill. They all had a good cry. Nathan could see that his family was worried sick about him, and he tried to cheer them up. He told them he was going to be fine and not to worry. But it broke Star’s heart to see her brother wearing jail scrubs. Bill and Laurie were going through a rough patch financially, and Bill had to sell blood to put a little money on Nathan’s jail commissary account.
On the ninth day of February, sheriff’s deputies mustered Nathan and other inmates at 5 a.m. They shackled their prisoners and herded them into a green Freightliner truck for the drive to Multnomah County’s Inverness Jail, which is designed for long-term inmates. Deputies put Nathan in a dormitory that held fifty-nine prisoners. The jail opened in 1988, a dozen miles from downtown near a scenic crook of the Columbia River and the sandy beaches of Government Island. But Nathan’s dorm overlooked a walled-off basketball court with a metal grate over the top. He could see daylight from the window, but the days were short and gray.
Nathan’s legal team worried he might commit suicide. The group now included three full-time investigators, all of them mothers. The mom squad made Nathan a special project, popping by the jail as often as they could to keep his spirits up. None of the women were going to nominate Jim as father of the year. They were floored by Jim’s betrayal of his son, and they weren’t certain how to break it to Nathan how badly he’d been used.
“As a mother,” Kunkel told me, “I was furious. All three of us were fit to be tied.”
They wondered why Nathan failed to comprehend his father’s betrayals. Kunkel saw a flicker of recognition in Nathan’s eyes during some of their conversations at Inverness, a hint that he was coming to grips with what his dad had done. But she soon came to understand his blind loyalty to Jim. She recalled one particular meeting, sitting in a visiting room as other inmates passed their window. Nathan told her the story of that day at Fort Bragg when he nearly slit his wrists. He told her about the call from Jim that jarred him from his suicidal fugue. Nathan put his head on the table and wept.
“I felt I owed him my life,” he said.
Kunkel teared up.
“You think you owed him your life?”
“Yeah.”
Members of Nathan’s legal team talked about him constantly, wondering if he would ever come to terms with how wickedly his father had worked him over. In their minds, Jim had treated his boy like one of the garden-variety foreign assets he’d handled overseas. He had put his boy in play in a dangerous game. And for what? To pull the wool over the government’s eyes? To massage his magnificent ego? The defense team would eventually have to broach these concepts with Nathan to show him that Jim had pulled his strings like a puppet master. They knew that Nathan and Jim—should they go to trial—would probably cross swords.
The defense’s immediate strategy was to prove Nathan could be trusted on the other side of the bars. The defense team knew they would get a much-needed boost if they could persuade a judge to cut him loose from jail as he awaited trial. This would give lawyers and investigators twenty-four-hour access to their client. Instead of driving to the jail and navigating a metal detector to ask him questions, they could talk to him face-to-face.
But the key reason to get him out was to rehabilitate his character in court, show he was a good guy. Springing him from the jail would build momentum. If Nathan was released and kept his nose clean, the judge would almost certainly take that into consideration and reward him with a lighter sentence. They also knew that if Nathan fled, he was going to prison for a long time.
Nathan’s trial was set to begin on the last day of March, less than two months away. But the date was a placeholder. The pace of national security cases in Oregon’s federal courts was nothing like those in the Eastern District of Virginia, where Jim had been convicted nearly a dozen years before. Spies and terrorists were regular features on Virginia’s “Rocket Docket.” But national security cases were rarer in Oregon, and federal judges there had much less experience dealing with highly classified files.
The Justice Department was preparing to disclose thousands of pages of evidence to the Nicholsons’ defense teams, a mountain of discovery that would include the FBI’s massive trove of investigative files, wiretaps, and video surveillance recordings, and the CIA’s storehouse of Jim’s phone calls and correspondence dating back to 1997. Jim’s letters, handed over by the CIA, ran more than eleven thousand pages. There was so much work ahead for lawyers and investigators on both sides that the judge eventually reset the Nicholsons’ trial for October 27. In the meantime, the judge docketed a hearing to decide whether Nathan belonged in jail until then.
The Honorable Anna J. Brown, a Clinton appointee, had a reputation as a no-nonsense judge with a maternal streak. Brown seemed to take dizzying steps to make sure jurors and defendants fully understood the procedures in her courtroom, the rulings she made, and what they meant. Her deliberate nature was sometimes read as sloth by eye-rolling lawyers who preferred more expeditious proceedings. But rarely, if ever, did her decisions need clarification.
Brown’s meticulous nature may have been an inheritance. She grew up in Portland answering her German-speaking parents’ questions in English to help them learn the language. She was the first American-born citizen in her family, which fled East Prussia during World War II, dodging the Red Army on its way to Germany. Seven years after the war ended, her family sailed to the United States aboard the Homeland, passing through Ellis Island and eventually settling in Portland.
On the morning of March 31, 2009, Brown entered her courtroom in a black judicial robe and took her seat to hear arguments on Nathan’s detention. Her hair was short and straight, mostly gray, and her face was broad. She was fifty-six years old, an age where people remind themselves they’ve accumulated some wisdom, but not all of it. Taped to the penholder on her desk was a slip of white paper from a Chinese fortune cookie. It read, “Keep your feet on the ground even though your friends flatter you.”
Brown stared down from her bench at Nathan, sandwiched between his lawyers. Behind him in the gallery sat his mom, Star, Nick and Betty, and more than a dozen other supporters. On the desk in front of Brown was a report recommending that Nathan be released from jail as he awaited trial. The papers had been drafted by a division of the court known as U.S. Probation and Pretrial Services, which had performed a thorough background investigation of Nathan and found he’d pose little or no danger if cut loose. Prosecutors held a different view. They knew a great deal about Nathan’s connections, and his tutelage in Jim’s school of spycraft, and believed he’d probably flee if the judge set him free. If Nathan bolted for Russia, and was granted asylum, they’d have a tougher time making Jim’s charges stick.
The chief prosecutor in the Nicholson case was Assistant U.S. Attorney Pamala Holsinger, an attractive for
mer Marine JAG officer with straight blond hair and a strong jaw. She had blue eyes that she could narrow into an incandescent glare. Holsinger had spent nearly two decades in the Department of Justice prosecuting criminals of every stripe—including terrorists, gangsters, drug traffickers, fraudsters, corrupt public figures, and child-porn collectors. Her opinion of Nathan was that he had performed as his turncoat daddy’s little soldier, and she wanted him behind bars.
Holsinger called her first witness, John Cooney, who recounted the FBI’s key accusations against Nathan. The veteran agent highlighted the details of Nathan’s confession, beginning with the genesis of the father-son plot, the crumpled notes he smuggled out of Sheridan, the cash payments by the friendly Russians, the code names, the Yahoo dead drop, the surveillance detection run in Cyprus, and the coded notes about the meeting in Slovakia that Nathan would never attend.
Prosecutors played much of the wiretapped phone call between Nathan and his sister on the night the FBI searched his apartment. Nathan listened impassively, hearing him tell Star about the messages he passed to the Russians for their father, and Star scolding him: “It just sounds kind of like what Daddy did.” His heart dropped, knowing he had publicly humiliated his sister. Prosecutors also played his call with Camilla Beavers. He heard himself describe the Russians as “really cool people” and declare, “Well, obviously they’re going to find me guilty.”
“Special Agent Cooney,” Holsinger said, “through your investigation, was there any indication that any other family members might be involved with the defendant and his father?”
“Yes,” Cooney said. He explained that Nathan’s impression, based on their interview, was that Jim had discussed their proceeds from the Russians with Nick and Betty. “There’s also a notation in the notebook . . . to the effect that the grandparents ‘know the situation’; they are trustworthy and will ‘help with the cover-up.’”
Nathan’s grandparents sat behind him in court. Nick and Betty weren’t charged with any crime. But Nathan felt as if he’d thrown them under the bus. He wanted to strangle Cooney.
“In your experience,” Holsinger said, “are you aware if there’s been situations where the government of Russia has taken in or harbored a fugitive from justice in the United States?”
“Yes,” Cooney said. He recounted the case of former CIA officer Edward Lee Howard, who was fired by the agency and fell under investigation by the FBI for suspected espionage on behalf of the Soviet Union. Howard had slipped the FBI’s surveillance. “In 1986, he surfaced in Moscow and began to reside in the Soviet Union.” (Cooney didn’t provide the court with the epilogue to the Howard story: He was reportedly found dead in his dacha in 2002, the victim of a broken neck, having taken a bad fall.)
Holsinger questioned Cooney about foreign diplomatic stations, such as Russian consulates, and the use of passports to leave the United States. Cooney explained that foreign consulates were exempt from the jurisdiction of U.S. laws, and that passports were a convenience for foreign travel, not a necessity. Holsinger was not so subtly telling Judge Brown that if she freed Nathan, he could race over the Canadian or Mexican borders into the arms of his Russian friends.
Jerry Needham began his cross-examination of Cooney by getting the FBI man to acknowledge that Nathan was just twelve years old when his dad was caught spying for Russia and that there was no evidence Nathan took part in those crimes. Needham established that Nathan’s travels over the last few years were under his own name, not an alias, and that when the FBI learned Nathan was flying to Cyprus, they let him go.
“You seized his passport in connection with this investigation?”
“That is correct,” Cooney said.
“Did the passport stamps or markings on the passport correspond with the information concerning his trips?”
“I did not look at his passport, so I can’t answer that question.”
“And the passport is in the possession of the FBI?”
“I would assume it’s in our evidence, yes.”
“OK, and the passport was in his name. Correct?”
“To the best of my knowledge, yes.”
“When did you—the FBI—start surveillance of Nathaniel Nicholson?”
Holsinger shot to her feet to object.
The Department of Justice will go to almost any length to hide the genesis of its national security investigations and surveillance operations. Holsinger did not want to compromise the secretive means the FBI had used to identify and snoop on the Nicholsons. She told Judge Brown it wasn’t relevant for the defense to know when the FBI began eavesdropping on Nathan.
The judge asked Needham to explain why it was relevant.
Needham said he wanted to put it on the record that the FBI had been tailing Nathan for many months; if agents thought he was a risk to flee the country, they could have arrested him much sooner.
“Maybe,” Needham began, “the agent could just give the court a ballpark area, how long . . .”
Holsinger objected.
“The objection is overruled,” Brown said. “Answer the question please.”
“By the fall of 2007,” Cooney said, “a full investigation into Nathan Nicholson was initiated.”
Needham fired away at Cooney, establishing that Nathan had no criminal history, received an honorable discharge from the Army, kept no guns or illegal drugs, attended community college, worked part-time jobs, and was aware several weeks in advance of his arrest that a federal grand jury was deciding whether to charge him. He also established that Nathan had phoned Jared Garth, prior to his arrest, to let him know he was planning on taking a trip to the state of Washington with friends.
“What did Agent Garth tell him?” Needham asked.
“I don’t know specifically what he told him,” Cooney said, “but he did not tell him not to go. I believe he asked him if he planned on leaving the country. And I think apart from that, he just told him to have a good trip.”
“And did Mr. Nicholson reply that he had no plans on leaving the country, or words to that effect?”
“I believe he did, yes.”
Needham had deftly let Brown know his client made no move toward Canada.
“Isn’t it fair to say that from the time period he was interviewed until he was arrested, all of his phone conversations had been monitored?”
“Yes,” Cooney said. “I believe that is correct.”
Now it was Holsinger’s turn. The prosecutor asked Cooney if Jim—in spite of the monitoring of his mails and phone calls—had still found ways to smuggle messages to the Russians.
“That’s what our investigation has determined, yes.”
“Special Agent Cooney, based on your training and experience, if the Russian government wanted to take care of the family members of one of their most successful and valuable spies, what message would that send to other people they might want to recruit in the future?”
“I believe it would send a message that the Russian government is prepared—and has the capability—to support family members of people who have worked on their behalf.”
Needham now questioned Cooney.
“You indicated that the Russian government would somehow want to send a message that they would take care of spies, or something to that effect. Correct?”
“I said that is my belief, yes.”
Under questioning, Cooney acknowledged that Moscow had not, as far as he knew, given any money or assistance to the family of former CIA officer Edward Lee Howard.
Tamara Pinkas, one of Nathan’s teachers, later took the witness stand as a character witness. She testified that Nathan had been a student of hers for three terms in 2008 at Lane Community College, including six months where he worked as an intern drafter at Burton Saw. He was professional, she said, reliable, responsible, and always made his deadlines.
Assistant U.S. Attorney Ethan D
. Knight, Holsinger’s co-counsel, cross-examined Pinkas. Knight was a rising star in the U.S. Attorney’s office, just thirty-four years old. He had attended Lincoln High School, just up the street, where he was a national schoolboy champion in constitutional law. He was now an adult version of that funny, self- deprecating, mildly nerdy kid in school, the one born with the sardonic string of one-liners.
Knight began by politely questioning Pinkas about Nathan, getting her to acknowledge that she supervised his internship in 2008 but didn’t take attendance.
“And during this period,” he asked, “you had no knowledge of the fact that he was communicating with agents of the Russian government, did you?”
“Oh, none whatsoever.”
“And you had no idea that he actually traveled to Cyprus at the conclusion of his period with Burton Saw?”
“I did not know that.”
“Thank you,” he said. “No further questions.”
It was now Price’s turn to flesh out Nathan’s good character.
He began by noting that after the FBI questioned Nathan—and continued tapping his phone—his client went nowhere. In fact, he said, the wiretaps proved that Nathan paid his bills, plugged away at school, and tried not to fret about the grand jury.
Knight offered counterpoint.
He said there was no measure that Brown could impose that would prevent Nathan from fleeing. He said Nathan traveled in secret to foreign locales, hid his trips from even those closest to him, and maintained a clandestine relationship with Russians, who even gave him a code name.
“The defendant was effectively, sight unseen, able to walk into a consulate on U.S. soil,” Knight said, “identify who he was, and establish a relationship that enabled him on five subsequent occasions to . . . communicate with Russian handlers in four different countries, including the United States, and be protected and . . . receive money and, more importantly, receive instructions for future meetings.”