A former FBI analyst was sentenced to seven days in jail and a $500 fine Friday for illegally accessing a neighbor’s email account in a bid to head off an apparent smear campaign against special counsel Robert Mueller.
Mark Tolson, 60, pleaded guilty in September to a single misdemeanor charge of computer fraud and abuse for his unusual effort last fall to derail eccentric Washington lobbyist Jack Burkman’s attempt to obtain information to be used in sexual misconduct allegations against Mueller.
Tolson admitted he unlawfully accessed Burkman’s emails in October 2018, after the conspiracy-minded lobbyist announced plans to hold a news conference to air sexual harassment allegations against Mueller.
After snooping through Burkman’s account, Tolson sent screenshots of the messages and offered the password to an unspecified journalist, court filings say.
Tolson’s wife, Sarah Gilbert Fox, facilitated the illicit access by providing Burkman’s email password, which she had obtained for work she’d previously done for him.
At Tolson’s sentencing Friday morning in Alexandria, Va., the longtime FBI employee told U.S. District Court Judge Leonie Brinkema that he acted out of a desire “to protect Director Mueller” from what Tolson believed were false allegations. “It was because of the press conference, your honor,” the ex-FBI official said.
“This is actually a very serious offense,” Brinkema said. “You’re lucky. Your wife is lucky. The government could have prosecuted her as well.”
Assistant U.S. Attorney Alexander Berrang asked for a short prison term in the case, saying Tolson’s motives were not as pure as he’d suggested because his wife believed she was owed money and Tolson was personally annoyed with Burkman.
Berrang said Tolson’s decision to take the information first to a reporter rather than the FBI suggested the actions weren’t just about preventing harm to Mueller or his probe.
However, Tolson’s attorney, Edward MacMahon Jr., disputed that.
“There was no other motivation here other than to protect Mueller,” MacMahon said.
“The government makes a good point,” Brinkema replied. “Why wouldn’t you go to the FBI instead of the press?”
MacMahon said Tolson did tell the FBI what he’d done within a day or so, but was really focused on scuttling the planned news conference, which never took place.
The effort by Burkman and right-wing activist Jacob Wohl to target Mueller was widely condemned, particularly following reports that mysterious individuals were contacting Mueller’s female former colleagues and offering to pay them for damaging information.
The defense lawyer called Tolson’s actions “foolish,” but also urged the judge not to give Tolson jail time, saying the episode already caused Tolson to lose his job.
“He does not need to be punished any further,” MacMahon said.
Brinkema ultimately concluded that some incarceration was appropriate to send a message that illegally accessing others’ emails is wrong, particularly when those doing so work in government or law enforcement.
“You can’t just rummage through other people’s accounts,” said the judge, a Clinton appointee. “You had to have known better.”
Brinkema also had a word of praise for the unnamed journalist who decided not to act on the information and password offer Tolson relayed via an encrypted app.
“I would commend whoever the media people are who turned it down,” the judge said, before adding to Tolson that he might have faced more serious charges or punishment if emails from Burkman’s account had been published.
“You’re actually probably lucky you didn’t get an unethical media person,” Brinkema said, without being explicit about whether she thought it would have been improper for the press to publish the messages or just to use the password.
Brinkema said Tolson can serve the seven-day sentence after the holidays, but will also have to do 50 hours of community service and will be on probation for a year.
Burkman did not respond to a message seeking comment on the sentencing.