A federal judge today denied bail for Katrina Leung, accused of passing FBI secrets to the Chinese Government. The Judge determined that Leung posed a risk of flight, based upon her extensive foreign assets.

The defense argued that the FBI set Leung up, purposefully providing her with information to pass on to the Chinese. Two FBI agents have admitted long term affairs with Leung, who has been a respectable Los Angeles businesswoman and Republican Activist.

One of the two FBI agents romantically involved with Leung, James J. Smith, was supposed to be her "handler." Smith has been charged with "gross negligence in handling documents related to the national defense." He was released on $250,000. bail.

Leung is charged with "unauthorized copying of national defense information with the intent to injure the United States or benefit a foreign nation." Over the course of the past twenty years, the FBI paid Leung $1.7 million in fees and expenses. She took 71 overseas trips, mostly funded by the FBI.

The judge was not overly impressed with the Government's case.

The judge said the documents she is accused of passing to the Chinese government appear to be "innocuous" and "viewed alone the offense itself does not provide a substantial reason to flee." He said that the maximum sentence that Leung could draw on the current charges is 10 years in prison.

Leung offered to post $3 million in real estate to secure her bond. The Judge refused to accept her proposal, saying that sufficient details about her assets had not yet been revealed.

Leung's husband and other relatives appeared in court and volunteered to post their own property for her bond. Leung has a young son and substantial ties to the community. She knew about the investigation into her affairs since December and did not flee.

We think she should have gotten bail. The judge's comment "The court cannot conclude that the defendant does not pose a danger to the national security" is a far cry from the standard of "clear and convincing evidence" that the Government must produce to establish that a defendant is a danger to the community.

The federal bail statute provides with respect to the Government's burden at a detention hearing:

18 USC Section 3142(f)(2)(B): The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.

We don't see the difference between FBI agent Smith and Leung. If Smith, her "handler" is bailable, she should be too.