Leaked Kanye West Tape Prosecution Stalls as DOJ Weighs Appeal

It’s been nearly eight months since federal prosecutors noticed an appeal from a decision dismissing wiretap charges against the reporter accused of leaking a now-infamous 2022 interview of Kanye West, yet the Justice Department hasn’t filed an opening brief.

Prosecutors accuse Timothy Burke of using “compromised credentials” to gain access to unaired portions of conservative pundit Tucker Carlson’s now-infamous 2022 interview with West during which the rapper shared antisemetic conspiracy theories.

The most recent deadline for the government’s opening brief was June 15. Instead of a brief, the Justice Department filed a motion asking the US Court of Appeals for the Eleventh Circuit for another 45 days — its third request for an extension in the case. The holdup, it explained, is authorization to pursue the appeal from the US solicitor general’s office.

That’s unusual, said Sean Marotta, an appellate lawyer with Hogan Lovells US LLP. Thirty-day extensions aren’t uncommon, but “eight months is a lot.”

The US Attorney for the Middle District of Florida immediately reported the district court’s dismissal to the Justice Department’s Criminal Division and prepared a recommendation on whether to appeal, the motion for an extension said. And, as required, the Criminal Division prepared its own recommendation and submitted it to Solicitor General John Sauer, who will make the final decision once attorneys in his office have weighed in.

The process has already “taken a lengthy period of time,” the request acknowledged, pointing to “complex and varied legal issues” and the “potential ramifications” of the lower court’s ruling.

But in a response filed June 16, Burke said the case, indicted in February 2024, “has always raised access, authorization, public-availability, newsgathering, and First Amendment questions.” Because the prosecution’s target here was a journalist, he said, the charges would have required approval at the highest levels of government under then-Justice Department policy, so the government has had ample time to parse the issues.

“The government filed a notice of appeal, obtained repeated extensions, reset the schedule by ordering a transcript months into the appeal after earlier representing that all necessary transcripts were on file, and now asks for another forty-five days because the appeal has not been authorized,” Burke’s response said.

The Justice Department didn’t respond to a request for comment on the delay.

Deliberations

In general, delays in a decision by the solicitor general tend to be a function of disagreement among components or attorneys within the Justice Department over what the government’s position should be, Marotta said.

Pursuing an appeal risks setting circuit-level precedent the Justice Department may not want. Decisions can also be complicated by political considerations.

“Any time you bring Tucker Carlson into the equation, that changes things,” Marotta said.

Judge Kathryn Kimball Mizelle for the US District Court for the Middle District of Florida dismissed the wiretap charges, saying the law’s exceptions must be understood to be elements of the offense to be consistent with the First Amendment, meaning the government must affirmatively plead and prove that exceptions written into the Wiretap Act are inapplicable.

If the exceptions were treated as affirmative defenses — as the government argued — prosecutors could indict anyone who accessed a webpage or streamed a YouTube video, Mizelle said. Defendants would have the burden of proving clearly applicable exceptions, she said.

Burke argues his alleged conduct is covered by two of those exceptions, one for when someone is a party to the conversation or has prior consent from one of the parties, and one for when the allegedly tapped system was configured to allow public access.

The credentials that led to the discovery of the unencrypted web addresses for the Fox transmissions were posted on a news affiliate’s public-facing website, according to Burke.

Burke also faces Computer Fraud and Abuse Act charges, but without a link to the Wiretap Act charges, they drop to misdemeanors.

Costs of Delay

“The real problem with the delay in this case is the government still has 100 terabytes of this guy’s data, and he only has limited access to it,” said Mark Rasch, a lawyer for Burke.

Despite being out of custody, Burke has basically been shut down as a journalist, he said. The longer the case is delayed, the longer he remains sidelined.

“This is a Biden-era case, based on a novel interpretation of computer crime laws that pose constitutional issues, and the ultimate victim is a journalist who exposed antisemitism, which the Trump administration purports to vehemently oppose — why is there even a discussion of continuing to prosecute the case?” said Seth Stern, chief of advocacy at Freedom of the Press Foundation, one of several organizations that filed amicus briefs in support of Burke at the district court.

“DOJ, as everyone knows, is stretched extremely thin—there are far better uses of prosecutorial resources than going after a journalist who used publicly available information,” Stern said.

Burke is also represented by Michael Maddux of Tampa.

The case is United States v. Burke, 11th Cir., No. 25-13969, response in opposition 6/16/26.