Trial subpoena for Risen's testimony more likely to succeed

It is more likely that a New York Times investigative reporter will have to testify in a trial against a former CIA official accused of leaking classified information, even though his subpoena before a grand jury for much of the same information was quashed, the federal judge handling the case said in a November ruling made public on Tuesday.

Last week James Risen moved to quash the subpoena for his testimony in the criminal trial of former CIA employee Jeffrey Sterling. Risen argued that testifying would violate his constitutionally based reporter’s privilege to refuse to disclose confidential sources and other information obtained while newsgathering. A hearing on the motion is scheduled for July 7.

Risen successfully quashed an earlier subpoena during the grand jury investigation. The grand jury indicted Sterling in December on 10 counts, including unauthorized disclosure of national defense information and obstruction of justice. The government issued the most recent trial subpoena in May.

The government alleges that Sterling leaked information to Risen on a classified CIA operation intended to injure Iran’s nuclear program, which Risen reportedly published in his 2006 book, "State of War." In court filings, Risen contends the operation was highly flawed and possibly transferred potentially helpful nuclear technology to Iran.

In a ruling on the earlier motion to quash the grand jury subpoena, which was issued in November but not made public until Tuesday, U.S. District Judge Leonie Brinkema said Risen may have a more difficult time quashing a subpoena to testify during Sterling’s trial.

“Were Sterling to be indicted and a trial subpoena to be issued to Risen, the analysis might well change, because at trial the government would have the much higher burden of proving Sterling’s guilt beyond a reasonable doubt,” Brinkema said.

Brinkema's ruling added that, in the context of a criminal trial, the government “might well satisfy” the legal standard required to overcome Risen’s motion to quash the subpoena.

The government did not need Risen’s testimony at the grand jury stage because it already had enough evidence to establish that there was probable cause that Sterling broke the law, Brinkema said.

Because the government could indict Sterling without Risen’s testimony, the government’s need for the reporter’s testimony was less weighty than Risen’s constitutionally based reporter’s privilege, Brinkema said.

In the ruling, Brinkema criticized the government’s attempt to force Risen to testify before the grand jury, pointing out that officials already thought they had enough evidence to indict Sterling before subpoenaing Risen.

In particular, the judge criticized the government’s decision to classify and redact portions of court filings that expressed this view because Risen’s attorneys did not know the government already felt so strongly about its case.

“The government’s admission that probable cause exists is significant, and it likely would have caused Risen’s counsel to present different arguments to the Court,” Brinkema said.

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 he had a grudge against the CIA and believed the agency discriminated against him because of his race.

The trial subpoena is the third subpoena the U.S. Department of Justice has issued to Risen. The first subpoena came when the government convened a grand jury subpoena in 2008, which later expired.

Brinkema, in the ruling unsealed on Tuesday, quashed a renewed grand jury subpoena in November 2010.

Risen has repeatedly said he will not reveal his confidential sources. If the subpoena is upheld, he could become the first journalist to be jailed for refusing to testify in several years. Josh Wolf, an independent videographer and blogger, spent more than seven months in federal prison after refusing to testify and turn over video footage related to a protest that turned violent in California in June 2005. In a more high-profile case, New York Times reporter Judith Miller was jailed for 85 days in fall 2004 after refusing to testify about conversations with a confidential source related to the leak investigation into CIA officer Valerie Plame.

Editor's note: The lead of this article was modified after initial publication to point out that the judge said the prosecutors' need for Risen's testimony would be more likely to suceed at trial than before a grand jury.