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Government Has No ‘Agreement’ With Reporter James Risen, Still Plans to Subpoena for Testimony

James Risen at the National Press Club

The United States government has indicated that the Justice Department does not currently have an agreement with New York Times reporter James Risen for testimony in a leak prosecution against his alleged source, Jeffrey Sterling, a former CIA officer charged with multiple violations of the Espionage Act.

Sterling met with Senate Intelligence Committee staffers and disclosed details on Operation Merlin, a CIA operation involving a former Russian scientist passing “flawed nuclear blueprints to Iran” that was bungled and may have actually helped Iran’s “nuclear ambitions.” He is alleged to have been a source for Risen’s book, State of War.

In a filing [PDF] to the US District Court of the Eastern District of Virginia, prosecutors responded to a motion submitted by Sterling’s defense last week. The defense sought details on whether the government had some kind of an agreement on the nature of Risen’s sought testimony after Attorney General Eric Holder made comments suggesting this might be the case.

“The government has not reached an agreement with Mr. Risen as to the scope of his potential testimony. Counsel for Mr. Risen has simply informed the government of Mr. Risen’s current position if he were subpoenaed in this case.”

The filing informed the court and defense that prosecutors’ most recent communication with Risen’s lawyer was on October 16. His lawyer informed the government that “Mr. Risen would not appear voluntarily, that is, a subpoena would be necessary to secure his presence at trial or any pre-trial hearing.”

“If subpoenaed to testify, Mr. Risen would testify that he wrote the book State of War as well as the prior newspaper story concerning the defendant, and that both the book and the story accurately reflect information obtained by Mr. Risen from his source or sources,” the government stated.

Risen’s lawyer also apparently informed the government that Risen would not “testify about any additional matters, including, for example, the timing of when he received the classified information at issue in Chapter 9, venue, or his use of journalistic conventions.” His lawyer would accept the subpoena if a subpoena for testimony was authorized.

It does not appear that the government agrees with Risen on the limits he would like to be respected if he testifies. The government requests a hearing some time in early December to “resolve” issues related to the “nature and scope of Mr. Risen’s testimony, or, if a subpoena has not [been] issued, the status of the subpoena determination process.”

Responding to criticism of the Obama administration’s record on freedom of the press, Holder said at the Washington Ideas Forum, “People have to understand something. We have been in touch with Mr. Risen’s lawyers. We’ve talked about a variety of things. If what we’ve talked about remains true, I think there’ll be a resolution of that that will be satisfactory to everybody. But as I said, no one’s going to be going to jail. No reporter’s going to jail as long as I am Attorney General.”

This led to Sterling’s defense renewing a motion for discovery of evidence [PDF]. “All of the information that the Attorney General discloses to political reporters is ‘news’ to the defense. If the government has reached some agreement with Mr. Risen, who is a witness in the case against Mr. Sterling, that agreement is discoverable. If the United States has made offers to Mr. Risen and communicated those offers to Mr. Risen, the offers and letters making such offers are discoverable.”

Both Risen and his lawyer, Joel Kurtzberg had no clue what Holder could have been referencing when he suggested prosecutors and Risen’s lawyers were close to some kind of resolution.

What the episode in this ongoing legal case did is force prosecutors into a situation where they had to provide some clear details to the court on negotiations. From the few details, it is clear the Obama administration has not backed off and still intends to go after Risen for testimony that could potentially reveal his confidential sources.

In fact, last week, POLITICO reported that federal prosecutors had obtained 100 blank subpoenas for “use in the upcoming trial” of Sterling.

Officials in the Obama administration like Holder keep repeating this refrain about not putting any reporter in jail.

The Obama administration does not have to jail Risen to get the result desired. They could escalate their attack on him by engaging in a measure that could bankrupt him if he does not comply.

Cindy Gierhart of the Reporters Committee for Freedom of the Press (RCFP) has outlined, “A journalist – or anybody – who refuses a court order could be fined or jailed, or both. So Risen could still be fined, even if he is not jailed, and fines can be steep. When USA Today reporter Toni Locy was held in contempt for refusing to identify her confidential sources in 2008, a judge ordered that she pay $500 a day for the first week, $1,000 a day for the second week, and $5,000 a day for the third week.”

Plus, the Obama administration acts as if it is not already objectionable that they fought against Risen as he submitted legal challenges to the subpoenas over the past six years. He lost his appeal and had to ask the Supreme Court to hear his case arguing that as a reporter he had a privilege to protect his sources. The Supreme Court refused to hear his case in June and that provided the Obama administration the opportunity to proceed with forcing his testimony.

As Kurtzberg reacted after the Supreme Court refused to hear the case, “I hope that [the Obama administration doesn’t] seek to find him in contempt for protecting his sources and doing his job.”

It may soon become even more clear how much contempt the Obama administration has for freedom of the press, especially if they apply pressure to Risen to get the testimony they want.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."