August 7, 2013

James Risen wants his subpoena scrapped.

Risen is the New York Times reporter at the heart of a juicy court case that sits astride important First Amendment and journalism issues. His 2006 book, “State of War: The Secret History of the CIA and the Bush Administration,” contains a chapter describing how the CIA blundered in trying to get a former Russian scientist to screw with Iran by giving the country bogus nuclear weapons plans. In 2010, the Justice Department indicted former CIA agent Jeffrey Sterling for leaking national security secrets to Risen for publication in “State of War.”

And the feds are seeking Risen’s testimony in the case. Just weeks ago, the 4th U.S. Circuit Court of Appeals slapped back Risen’s contentions that he was protected from answering his trial subpoena on First Amendment and common law grounds.

In response to the decision, the Erik Wemple Blog asked: Hey, just how critical is Risen’s testimony to the case against Sterling? After all, court documents show that the prosecutors have some pretty meaty evidence against Sterling.

Plus: The Justice Department, not long before the appeals-court ruling, released a new proposal on handling cases involving reporters. Titled “Report on Review of News Media Policies,” the document said prying testimony from the Fourth Estate is “an extraordinary measure,” “a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.”

In a July 25 letter, Risen attorney David N. Kelley pressed Attorney General Eric Holder to withdraw the Justice Department’s subpoena for Risen’s testimony. After noting the relevance of the new guidelines, the letter argues, “You may follow the route set forth in your new Guidelines, a route which would not always lead to you to insist on the ‘most probative’ testimony but only to require journalist’s testimony when it was absolutely ‘essential’ to do so. Such an approach would, we think, inevitably lead you abandon the effort to require Mr. Risen to testify. Or you may seek to proceed apace, in a manner utterly inconsistent with the Guidelines, to require Mr. Risen’s testimony on the ground that, since he was the ‘only eyewitness’ to the alleged crime of speaking with him, he must breach his promise of confidentiality.”

The letter ends with a request to meet with Justice officials at their “earliest convenience.” In an e-mail to the Erik Wemple Blog, Risen notes that Holder hadn’t responded to the request. That’s why Risen and his counsel decided to release the letter.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.