MOSCOW–Paul Whelan, a U.S. citizen accused of spying who faces 20 years in a Russian prison, is being represented by a former Soviet government investigator who has never before tried an espionage case involving a foreign citizen.
Russian independent prison monitors and human rights defenders were surprised to hear that Whelan had accepted Vladimir Zherebenkov as his attorney, believing it likely the lawyer was the choice of the same Federal Security Service (FSB) that arrested Whelan in the first place.
“It often happens that investigators pick out an attorney who basically acts as one more investigator,” says Zoya Svetova, a veteran prison monitor.
In an exclusive interview, Zherebenkov told The Daily Beast that he had never defended U.S. citizens in the past and had no experience in working with foreigners accused of espionage. But he was happy to accept “an interesting, high-profile” case.
Zherebenkov’s stated goal is to arrange a trade and bring home "at least one Russian soul." It’s widely assumed that the intention is to exchange him for Maria Butina, who recently pleaded guilty to conspiring to act as an unregistered agent for Moscow and signed a broad cooperation agreement with the U.S. Justice Department. Prosecutors said she tried to build a back channel between Kremlin officials and Republican operatives during the 2016 presidential campaign.
“I have no inside information, but it seems unlikely that Mr. Whelan has any affiliation with the U.S. intelligence community,” Michael Morrell, host of the Intelligence Matters podcast and former acting CIA director, told The Daily Beast. “Most officers are declared and they receive diplomatic immunity. That means if they are picked up in a foreign country, then they are simply sent home. That’s not what happened here. Mr. Whelan was most likely picked up by the Russians under false pretenses to try and set up an exchange situation, Whelan for Butina.”
Dan Hoffman, a former CIA station chief in Moscow, told The Daily Beast in Washington that Whelan “is not going to get a lawyer unless it’s FSB-approved. So when the lawyer says, ‘We want to make an exchange,’ that’s the FSB saying it through the lawyer.
“That’s the Russian government saying what they’re saying and he’s saying it publicly," Hoffman told us. "They want to use the U.S. public square in their favor as a force multiplier, and the way to do that is to have this lawyer make a public statement because then Paul Whelan’s family will jump on it and pressure the U.S. government to do what the Russians want.”
“Based on my experience,” Hoffman added, “this looks like the Russians are fabricating a motive that doesn’t exist to suit their tactical plans. And we’ve seen this with the lawyer already talking about a swap. That’s clearly where they’re headed.”
Whelan’s family says he is totally innocent and was never involved in espionage. The Russophile ex-Marine was court-martialed on larceny charges and given a bad conduct discharge a decade ago after two tours in Iraq as an administrative clerk. The Guardian reported late Thursday that Whelan holds British as well as U.S. nationality. The U.K. Foreign Office said, "Our staff have requested consular access to a British man detained in Russia after receiving a request for assistance from him."
Whelan is alleged to have received a USB drive containing a classified list of names.
“Based on what I’ve seen in the past,” said Hoffman, “it’s similar to cases where they fabricate evidence.”
Zherebenkov told The Daily Beast his son, Roman Zherebenkov, had first worked on the Whelan case December 28 and 29, the first two days he was in custody, “and then I was hired.”
Whelan’s twin brother told CNN that the family had no idea where Whelan was on December 28 and 29, or even if he was alive. The family had no chance to hire anyone to defend him during the first two days of his detention.
Zherebenkov refused to explain the role the FSB investigators might have played in his appointment.
In the past, Zherebenkov said, he has won several jury trials, “at least six out of ten.” But in this case, he said, “Whelan will not have a jury trial. He is facing a very serious accusation. He is possibly going to have a trial with a three judge panel.”
The attorney said he did not have any success stories to tell about trials of that nature. “Our judicial systems is far from being perfect, there are very few acquittals in such trials.”
Several times during the interview, the defense lawyer praised the professionalism of the investigators. “I have worked with the FSB department several times before. They are professionals of a very high level,” he said. “The FSB must have collected and double-checked their evidence against Whelan before they arrested and accused him; they must have been following him for a while.” He is supposed to have landed in Russia on December 22 to attend a friend’s wedding.
Paul Whelan’s attorney confirmed that his client is now under the so-called “quarantine” regime in Lefortovo Prison, as reported previously in The Daily Beast. “He is going to stay in a single cell for the first 10 days of his arrest. He is asking to be moved to a cell with an English speaking inmate; he wears a prison robe but he is in good spirits,” the attorney told The Daily Beast.
Zherebenkov said he saw Whelan in Lefortovo Prison on Wednesday. He said that he had helped to organize the U.S. Consul General’s visit. “Tomorrow [Friday], Whelan’s parents are coming from London but I am not sure if the FSB approves their meeting with my client,” the attorney said. “Paul’s mother does not live together with him, so hopefully she can be qualified as a non-witness,” said the attorney. If she were a potential witness, she could not visit him.
The Russian court has ordered Whelan held until February 28, and his detention could be extended repeatedly pending an investigation.
Zherebenkov was convinced that his client eventually will be exchanged or returned to the United States. “The investigation will continue for at least six months. Only after that we can try to get Whelan out, under house arrest.” That would be pending the end of the investigation, and then, typically, there would be a trial and conviction, after which Whelan could ask for a pardon from President Vladimir Putin.
Although the attorney said he had no doubt that his client was innocent, “There will be no miracle, I don’t think Whelan will come out on February 28.” Meanwhile, “He has a right to have two visits a month. Yesterday he had one meeting with the U.S. consul general.”
According to the attorney, Whelan was complaining about communications problems at the prison. “He showed prison employees that he wanted to shave, that he needed paper to write on, but they did not understand him.”
Zherebenkov said he had helped to provide all the necessary things for his client. “He says he is following the news, he must have a TV set, I guess he might have CNN,” Zherebenkov added.
Experienced prison and court observers were highly skeptical about that bit of information. “This is not true,” said Svetova. “Lefortovo has very thick walls built in the 19th century. There are very few Russian channels on prison TV sets, so Whelan definitely does not have CNN or any other foreign TV channels.”
“Whelan’s relatives should hire an independent attorney who is experienced in espionage cases,” said Svetova. “There are very few in Russia,” she noted, but suggested the obvious choice would be Ivan Pavlov, founder of Team 29, a group of attorneys specialized on state treason and espionage cases. Earlier this week Pavlov told The Daily Beast that he would be happy to defend Whelan, but it’s apparent that would not fit into the Russian government’s plan.
Anna Nemtsova reported from Moscow, Betsy Woodruff from Washington, D.C. Adam Rawnsley also contributed reporting.
This story was updated at 2:30 a.m. EST, January 4, 2019.