During Pretrial Hearing, Journalist James Risen Refuses to Help US Government with Leak Case
New York Times journalist James Risen testified in a federal courtroom in Alexandria, Virginia, during a pretrial hearing in a leak case against former CIA officer Jeffrey Sterling. The hearing was held so US District Court Judge Leonie Brinkema could determine what questions Risen would have to answer at trial as a subpoenaed witness.
The former CIA officer is alleged to have given information to Risen on a classified program that the government claims was “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which Risen later published in his book, State of War. He is charged with committing ten felonies, seven of which fall under the Espionage Act. A trial is currently scheduled to begin in the middle of this month.
For the Times, Matt Apuzzo reported during the January 5 hearing Risen declared, “I am not going to provide the government with information that they seem to want to use to create a mosaic to prove or disprove certain facts.”
According to Sam Husseini of ExposeFacts.org, Risen was asked by prosecuting attorney, James Trump, if he had a”confidentiality agreement” with a source or sources. “When I said I had identified sources, I identified those sources; when I said I had unidentified sources, I had unidentified sources,” Risen essentially replied multiple times. He also confirmed he had written articles relevant to this case.
Risen appeared to be unfamiliar with information he had already provided in previous affidavits. The judge reminded him of the penalty of perjury and Risen asked to talk to his lawyers. Following a five-minute recess, Risen provided “yes” or “no” answers to the prosecuting attorney.
One of the questions, which he answered “yes,” was that he had talked to Sterling in 2002 for a story about his lawsuit alleging racial discrimination against the CIA, according to Josh Gerstein of POLITICO.
Although the government repeatedly asked Risen if he would “divulge who his unidentified sources were if asked” during trial and he maintained he would not, the government never asked him about his unidentified sources, Husseini reported.
The defense for Sterling was upset about this fact because the government has spent over six years seeking to compel Risen to testify about his sources. The Supreme Court refused to take Risen’s lawsuit alleging he had a reporter’s privilege not to reveal his sources, which cleared the government to subpoena him and force him to testify about who provided him information for his book. Yet, recently, the government has seemed to back down slightly.
When news broke in December that Holder would no longer force Risen to reveal the identity of his confidential source at trial, Sterling’s lawyer, Edward MacMahon Jr., reacted, “If the result is that the Attorney General does not want to issue the subpoena that his own Department of Justice fought for all the way to the Supreme Court, then three years of Mr. Sterling’s life have been wasted in litigation.”
Husseini detailed an exchange in the courtroom where MacMahon mentioned a “book proposal for State of War.” It was, Risen testified, actually a “promotional material for a book fair.” Risen could not help himself and asked how the government had obtained this document, which sparked laughter and prompted Brinkema to say, “It doesn’t work that way.”
Before the hearing was over, MacMahon indicated the defense would move for the dismissal of all charges against Sterling. MacMahon claimed that Risen’s testimony was not sufficient enough for the government to prove its case and, therefore, the government lacked evidence to bring the case to trial.
The government has to be mindful of concerns related to forcing a journalist to testify about his confidential sources and how that undermines the First Amendment. However, the defense for Sterling does not have to worry about such concerns. He could ask Risen questions to help exonerate Sterling, which may or may not put another person at risk of prosecution depending on the testimony.
At the moment, the Justice Department has demonstrated it has grown more sensitive to the press freedom concerns related to forcing Risen to testify. The defense may be taking advantage of this by arguing if the government is not going to force Risen to provide more testimony then it will not be able to prove its case during trial. So, Sterling should have all charges dropped and be allowed to resume his life free of prosecution.