Federal judge hears arguments in Risen subpoena case

A federal judge in Virginia heard arguments this morning about whether a New York Times reporter’s testimony is necessary for the U.S. government’s criminal leak case against former CIA employee Jeffrey Sterling.

After the hearing, U.S. District Judge Leonie Brinkema took under advisement a motion to quash a government-issued trial subpoena for the testimony of Pulitzer Prize-winning journalist James Risen. Risen’s attorneys argued that the government cannot fulfill its burden of proving the reporter’s testimony is critical or necessary for its case, but government attorneys maintained the court must weigh the state’s interest in upholding the integrity of the criminal justice system.

Risen filed the motion to quash last month, arguing that the subpoena violates the constitutionally based reporter’s privilege to refuse to disclose confidential sources and other information obtained during the newsgathering process. It also claimed the subpoena is an ongoing attempt to harass Risen.

Brinkema quashed an earlier subpoena for Risen's testimony during the grand jury investigation, though she said in a November ruling recently made public that it is more likely Risen will have to testify at trial. At today’s hearing, Brinkema further noted that the government did not need Risen’s testimony to convict Sterling at the grand jury stage but it may become more necessary at the trial stage, where prosecutors face a higher burden of proof.

Joel Kurtzberg, Risen’s attorney, argued that the government has not laid out its case or shown what other testimony is or is not available before subpoenaing Risen.

“A reporter’s testimony should be a last resort, not the first resort,” Kurtzberg said. "If they want Mr. Risen’s testimony, their burden is to show you they have no other reasonable alternative, but they don’t show you anything about what their case will look like."

Brinkema also said she had concerns about the lack of information provided about how the government plans to lay out its case.

“How can the court take the balancing approach — which I believe is correct — and make a decision as to whether evidence is necessary when I don’t know what the government’s evidence is?” Brinkema asked.

Risen’s lawyers also argued, as they did in their motion to quash, that prosecutors cannot show that Risen’s testimony is critical or necessary to their case at trial, therefore failing to meet the standard required to overcome a journalist's privilege from compelled disclosure of confidential sources. Defense lawyers noted the government has other admissible evidence to support its allegations, and have merely said Risen’s testimony would simplify the trial and clarify matters for the jury.

The government argued it is entitled to use direct evidence and the jury has the right to any information that will allow a more certain verdict.

Prosecutors said the court needs to weigh the government’s “compelling interest” in the justice system and the jury's right to hear every person’s testimony.

Sterling is one of five leakers to be prosecuted by the Obama administration. He is charged with giving Risen information on a classified CIA operation intended to injure Iran’s nuclear program, which Risen reportedly published in his 2006 book, "State of War." In December, a federal grand jury in Alexandria indicted Sterling on 10 counts, including unauthorized disclosure of national defense information and obstruction of justice.

"State of War" details the highly flawed and mismanaged operation in Iran, just one of many instances in which Risen has brought government wrongdoing to the public’s attention, according to Risen's motion to quash the subpoena.

Sterling worked for the CIA from May 1993 until he was fired in January 2002. Prosecutors allege Sterling, who is black, leaked information to Risen because Sterling had a grudge against the CIA and believed the agency discriminated against him because of his race.

This is the third subpoena the U.S. Department of Justice has issued to Risen. The government issued him a grand jury subpoena in 2008, which expired when the grand jury's term ended before he had to testify. Brinkema also quashed a renewed grand jury subpoena in late 2010. The Department of Justice issued the most recent subpoena on May 23.

Risen has repeatedly said he will not reveal his confidential sources. If he is forced to testify, he could become the first journalist to be jailed for refusing to testify in several years.

Risen has agreed to testify on information that is already known and published, including: that he wrote a particular book or article; that what he wrote is accurate; that statements cited to an unnamed source are in fact from an unnamed source; and that statements cited to an identified source are in fact from the identified source. He said he will not testify to any other questions.

Prosecutors said they wish to ask Risen when and where he received informant in addition to eliminating other potential sources by asking him if they were the ones who leaked him information.

Kurtzberg argued that Brinkema had already ruled in her grand jury decision the reporter’s privilege extends beyond identifying the source by name.

“I think if these types of questions are allowed, they could be asked repeatedly to a journalist and at some point if those are permitted, the journalist is asked to identify a person," he said.