The Spy's Son

by Bryan Denson

  Zaporozhsky had been back in U.S. hands only a few months and remained under protection. Rochford would never utter his name in court, or anywhere. Zaporozhsky’s role in the Nicholson case would remain classified, a secret that counterintelligence insiders shared with me for this book, under condition of anonymity. It remains unclear why the U.S. continues to keep Zaporozhsky under such tight wraps. Russia’s intelligence leaders traded him, fair and square, to secure the freedom of their illegals rolled up in the Ghost Stories probe. Russians will probably always consider Zaporozhsky a villain for his betrayals. But he will go down in American history as a hero for helping to expose Jim and other moles who betrayed U.S. secrets to Russia.

  Jim’s defense team made a bid to reach into that inner sanctum of national security. His lawyers filed a motion to force the government to review its debriefings of Robert Hanssen, who worked in the FBI’s Washington Field Office about the time Jim ramped up his espionage for Russia. Jim’s lawyers wanted to know if Hanssen provided the SVR with details of Jim’s first espionage investigation, arrest, and debriefings. They pointed out that if Hanssen had passed Jim’s debriefs to the SVR, the Russians would have already known how Jim was caught—making Fedotov’s inquiries a moot point.

  “Clearly,” the defense wrote, “if the Russian Federation already knew the details of Mr. Nicholson’s arrest, that tends to belie the suggestion from the government that Mr. Nicholson was somehow providing the Russians information that would be useful to them in detecting weaknesses in their intelligence operations.” They noted that Rochford participated in thirty-five debriefings of Hanssen, suggesting he would know the answers.

  The Hanssen debriefs were so closely guarded by the government that it’s unlikely Judge Brown would have ordered their disclosure.

  As it happens, the argument would never reach the courtroom.

  Prosecutors were preparing FBI agents for their turns in the witness box when Kauffman phoned Knight to say Jim might be willing to make a deal.

  What followed, as Knight put it later, was a furtive exercise in shuttle diplomacy that commenced with a few phone calls and a couple of meetings in his office. It was an uncommonly busy time for Knight, who was suddenly up to his armpits in another major national security case: An Oregon State University student had met that summer with two undercover FBI agents posing as al-Qaeda terrorists. Mohamed Osman Mohamud, a nineteen-year-old Somali American from a good family in Beaverton, had taken a turn for radical Islam and now planned to help his friends detonate a massive fertilizer bomb during Portland’s annual Christmas tree lighting ceremony in late November.

  Knight knew that the Mohamud case, arising from a classic FBI domestic terrorism sting, would consume his waking hours. What he didn’t know is that Holsinger would eventually join him as co-counsel in that case. At that hour, one thing was certain: Knight was happy to negotiate with Kauffman to see if perhaps they could make a deal. The Mohamud case was already chewing up his workdays, and preparing for an espionage trial wasn’t going to make his life any easier.

  Jim shuffled into Judge Brown’s court at 8:58 a.m. on the second Thursday in November. He slipped into the seat next to Kauffman in a wood-slat courtroom with high ceilings and thermostat problems. The room burned hotter than teenage love. Jim looked older, grayer, and more haggard. His swagger was gone. On the table in front of him were two documents, a total of fifteen pages that spelled out a binding plea agreement. If Brown approved his plea, Jim would look considerably older by the time he got out of prison.

  Judge Brown took her seat a few moments later and spent much of the next forty-three minutes asking Jim questions, the ambient notes of a court reporter’s keyboard quietly clacking between them. Toward the end, Jim pleaded guilty to conspiring with Nathan to act as an agent of the Russian Federation and laundering the proceeds. Brown took the plea agreement under advisement. She would have to consider whether the eight additional years of prison agreed upon by prosecutors and Jim’s defense team was in the best interests of justice.

  As Kauffman later explained, Jim wanted to face the charges head-on at trial. But the specter of his youngest son sitting on the witness stand was too much to bear. “Ultimately,” Kauffman said, “he couldn’t move forward.”

  Government officials in Washington responded to news of Jim’s guilty plea with sterile quotes about Jim’s breaches of trust and violations of the oath he took to protect his nation’s secrets. But Oregon’s top FBI official, Art Balizan, got to the heart of Jim’s betrayals: “During his career with the CIA, this country entrusted [him] with some of its most sensitive secrets. Not once—but twice—he betrayed his oath, our nation, and his family. Unfortunately, this is a legacy he and his children will live with from now on.”

  The most betrayed person in the whole sordid mess was forbidden from attending Jim’s plea hearing. A few days earlier, Nathan’s defense team had gathered around a speakerphone to tell their twenty-six-year-old client that his dad planned to plead guilty, sparing him from a wrenching stretch in the witness box. Nathan, who had prayed for just such deliverance, was relieved but hardly euphoric. He couldn’t stop calculating the damage. He was now a felon facing prison. He had betrayed the country he loved. His dad was a two-time felon who’d be well into his seventies before he was freed. The Bureau of Prisons would certainly move his dad to another prison out of state.

  Nathan felt certain the judge would impose a no-contact order, meaning he’d be well into middle age before he could mend things eye to eye with his dad. As he told a psychologist, “This is like the death of my father. I doubt I will ever have the opportunity to talk to him again.”

  Now it was Nathan who would face the judge.

  The night before his sentencing hearing, now living in a tiny studio apartment in Corvallis, Nathan sat down alone to a plate of curry chicken at an Indian restaurant called Nirvana. He drove back to his place and put his affairs in order. He jotted down his financial information—including bank account numbers and passwords—on a single piece of paper, which he left on the floor the next morning before driving to Portland. On the morning of December 7, 2010, Nathan made his way through the Hatfield courthouse metal detector. He wore his black suit and a crisp blue shirt and tie, his face taut with anxiety. He strode across the lobby, passing a quotation from Alexander Hamilton etched into a massive wall of black marble—“The First Duty of Society Is Justice”—on his way to the elevator doors. Outside Judge Brown’s courtroom, he handed his car keys to a friend he’d known since middle school.

  Nathan took a seat between Tom Price and Jerry Needham at the defense table, with prosecutors Knight and Holsinger off to his left. A box of tissues sat on the table in front of him. Laurie and Bill sat behind Nathan, as did Nick and Betty, along with a few other friends and relatives. A large group of high school girls from nearby St. Mary’s Academy, Judge Brown’s alma mater, crowded into the gallery. A gavel brought them to their feet at 9:01 a.m.

  “All rise.”

  Nathan stood as Brown settled into her chair.

  “Please be seated.”

  Nathan’s sole chance of freedom lay in the hands of the graying judge now shuffling papers on the bench.

  Jerry Needham, the lanky lawyer with the Queens accent, told Brown that it was unfortunate she had not had the same chance to get to know Nathan that the lawyers, FBI agents, and defense investigators had.

  “I’m sure that your honor would come away from that experience similar to everyone else,” he said. “Mr. Nicholson is a loyal, decent young man who would never set out to engage in this kind of conduct or behavior had it not been for his unusual and destructive relationship with his father. He exhibited, through the course of all of his meetings, a great deal of anguish about this particular crime and his behavior, how it has affected him. He never had an ax to grind against his government. . . .

  “He has a conscience, and it has deeply affected h
im that his behavior has caused this rift in his family—the destruction, for the most part, of his relationship with the father who he loves and admired as a kid. He never truly understood his father, however. He never really understood his father’s crime. . . . His father afterwards, while he was in prison at Sheridan, told him and his siblings the story—which was a lie—that he had done it all for his family. In the shadow of that deception, their relationship grew.”

  Needham explained that Nathan’s faith in his father was shattered when the FBI came to his door nearly two years back. It was then that Nathan began to reexamine himself against the young man whose father had led him astray. Needham urged Brown to sentence Nathan not to prison but to probation, with one hundred hours of community service to the Department of Veterans Affairs. Imprisoning him, he told Brown, would only disrupt his chances of rebuilding his life.

  Judge Brown looked down and asked if Nathan had anything to say for himself.

  He stood at attention, shoulders square.

  “Your honor,” he began, “I would first like to thank you for the time that was allotted to me to help regain and reestablish what I could in my life. Your honor, I—I—I am deeply sorry that this even happened. I am terribly embarrassed. . . . I’ve hurt my friends and family . . . and I wish to use any and all energy I can to help restore what was once lost, your honor. Thank you.”

  “What’s your plan?”

  Nathan lightened a little. He said he hoped to finish his degree in computer science, specializing in software systems. His goal was to design a system that would make houses or cars more energy-efficient.

  “Aside from that,” he said, “I also wish to have a family of my own someday, your honor, to settle down and to not live such an adventurous life. . . . I also wish to continue abiding by the laws, your honor, and to . . . basically own up to anything that I need to, punishment or otherwise.”

  Judge Brown had reviewed mounds of paper that recommended she be lenient with Nathan. His defense lawyers, the court officer who wrote his presentence report, and even the prosecutors had all come to the same conclusion about the earnest, gullible, slightly goofy young man now sitting before her. None of them thought he belonged in prison. But the judge’s job, guided by federal sentencing guidelines, was to structure a sentence that promoted respect for the law, protected public safety, and took into account the seriousness of his crimes.

  “While the defendant’s relative culpability, as compared to his father’s conduct, clearly is less, the two of them together engaged in a conspiracy to engage agents of a foreign government, and then to launder money received from agents of a foreign government in a manner intended to deceive and to avoid detection,” Brown said. “Where that plot may have gone, had it not been detected early by the government and interrupted after . . . this defendant’s personal overseas travels on numerous occasions, is only left to speculation.”

  Her words hung in the air like the notes of a funeral dirge.

  Judge Brown then launched into a monologue, as if deliberating aloud. She noted that Nathan quickly took full responsibility for his role in the father-son plot, and agreed to mend his breach by cooperating with the government. Nathan did so, she said, at no small expense to his relationship with his father, his own psyche, and his unresolved anxiety about the terrible crimes his father committed against his nation.

  “When I released you from custody, Mr. Nicholson, there was debate about whether that was a wise decision. The lawyers who are joining in the probationary recommendation today argued that I was taking a risk by letting you out and that there was a chance you would flee to seek refuge from the agents of the foreign government with whom you had been dealing. You committed that you would not. You promised that you would follow every condition of supervision that was placed on you. And with every single report I’ve received since I authorized your release, it has been confirmed that you met each and every one of those obligations. So I’m relieved. I’m relieved that the promise you made was actually borne out by your conduct.

  “I think here, for all the reasons that have been written about,” Brown said, “it is fair to conclude that a prison sentence is not necessary. And therefore, I decline to impose a prison sentence, but instead will place the defendant on a five-year period of probation.” She also ordered him to serve a hundred hours of community service with the VA.

  Nathan was free to go home.

  On Tuesday, January 18, 2011, Jim shuffled across a patch of courtroom carpet in leg irons. Betty Nicholson was shocked to see her son so bedraggled. He had always put himself together, even behind bars. Now he wore wrinkled BOP khakis with short sleeves, his Ranger tattoo as faded and worn out as his face. His scalp showed more shine than that day nearly two years before when he’d walked into court looking as if he owned the place. Now he appeared resigned.

  Nathan and Star squeezed in together on the front bench directly behind their dad. The only thing separating them from Jim was a wooden rail and armed deputy marshals. Nathan had not seen or heard from his dad in nearly eight hundred days, and his gut was knotted with worry over how the old man would treat him after his sentencing.

  At 1:36 p.m., Kauffman and the government’s lawyers walked into the courtroom out of a door near Judge Brown’s bench. She took her seat moments later and got right to business. She was ready to proceed, having read Jim’s presentence report, and would accept his guilty plea. But she noted that under federal sentencing guidelines, she could sentence Jim to an additional twenty-five years in prison.

  “So, Mr. Nicholson, first I need to be sure you’ve seen the presentence report, and reviewed it with your attorney.”

  “Yes I have, your honor.”

  “All right. Is there anything you would like to say before I impose sentence?”

  “Yes, your honor. I do have a statement to make.”

  Jim asked Brown to forgive him for what would be a long speech.

  “We have all the time you need,” she said.

  Standing now, Jim began.

  “Your honor, in my life I have been through several coups. I have been through a revolution, and I have been through a war. I have been marked for assassination by a foreign terrorist organization. I have been hunted by armed gunman in East Asia, and I have been imprisoned in this country. I have gone through a heart-wrenching divorce and custody battle. But the worst day of my life was the day I learned that my young son had been arrested and charged with acts for which I was responsible.

  “Your honor, in 1996, when I was first arrested, it was not just my money, my home, my car, and my possessions that were taken by the United States government. It was my children’s home, my children’s family car, my children’s possessions, and their personal savings accounts that were also seized by the United States government, in an effort to punish me. For at that time, on that day, my children were told to pack one bag each. They were then taken to the airport with their pet cats, placed on an airplane, and flown from their home in Virginia to Oregon—a place where they had only visited their relatives. My oldest son was forced to leave college and to get a job, in an effort to help support his younger brother and sister.

  “For over a decade I sat, as if in amber, watching from the federal prison while my children struggled to make ends meet. They did a heroic job. After 9/11 and the terrorist attack in 2001, both of my boys entered the military on their own, but with my blessing. My daughter went to get a college degree and set out to pursue a career on her own.

  “For the last 766 days, your honor, I have been in solitary confinement. I have been held in a stark cement cell for twenty-four hours a day. I have been separated from my family. Other than letters, I have had no contact with anyone but my legal team and prison officials. . . . During this time, I have concluded that my children never really needed the extent of help that I thought they needed. My children, each one of them, are wonderful, good, caring,
smart, and capable people.

  “The truth is, your honor, it was not just their need for assistance that caused me to suggest the course of action that I did. It was my pride. It was also the illusion that I was somehow indispensable to my children’s survival. Your honor, in solitude, illusions dissolve. It was in my solitude of solitary confinement that I realized that all my children ever really needed from me was my love.”

  Jim explained to Judge Brown that he sought help for his kids only when Star and Jeremi were buried under an avalanche of student loan debts and struggling to make the rent.

  “And it was in desperation that, after all of my prison savings had been expended, that [I believed] they might be helped by only one source—and the only source I could think of at the time was the Russian Federation. Now, I recognize that it was because of my previous assistance to them that they were willing to help my children in their time of need. However, I would also like to add that the Russians owed me nothing. And insofar as their efforts were truly to help my children, I regret the embarrassment that this has caused them as well.”

  Jaws dropped among the FBI agents against the back wall. The son­ofabitch had just apologized for embarrassing the Russians. Jim’s fealty to Moscow was particularly galling to Jared Garth, the FBI’s lead agent in the case. He was flabbergasted that Jim failed to offer a single word of apology to the nation he betrayed. Only later did it dawn on him: “Why would he apologize to the United States? He was loyal to the Russian Federation.”