August 27, 2013

President Obama, left, and Attorney General Eric H. Holder Jr. (Pablo Martinez Monsivais / Associated Press)

It’s been a busy summer for New York Times reporter James Risen.

• On July 19, a 2 to 1 ruling from a federal appeals court in Richmond held that he couldn’t use a reporter’s privilege to excuse himself from testimony in the federal leak case against former CIA agent Jeffrey Sterling. The government alleges that Sterling passed along classified information to Risen for use in his 2006 book “State of War: The Secret History of the CIA and the Bush Administration.” The ruling greatly disappointed Beltway practitioners of First Amendment law.

• In a July 25 letter, Risen attorney David N. Kelley petitioned Attorney General Eric Holder to withdraw the subpoena for Risen’s testimony and requested a meeting on the matter. Risen later released the letter after getting no response from the Justice Department.

• On Aug. 2, Risen petitioned for a rehearing en banc of the case.

• Yesterday, the government issued a filing arguing for denial of Risen’s petition for rehearing en banc.

And prior to all this legal wrangling, the Justice Department issued revised guidelines detailing how it would approach cases involving news outlets. It made clear that it wouldn’t push for reporters’ testimony unless it really, really had to. Such a move, it clarified, would be 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 their July 25 letter and petition for rehearing, Risen & Co. seized upon the Justice Department’s media guidelines. “The DOJ’s recent decision to strengthen its already-strict, voluntarily guidelines for subpoenaing members of the media provides further evidence of the near unanimous consensus that journalists should have a qualified privilege not to reveal their confidential sources and further support a finding of a common law privilege,” notes the petition.

The Justice Department couldn’t disagree more. In its filing, it delivers this brush-back to the notion that revisions to the guidelines shift the ground underneath Risen’s subpoena:

Risen asserts that the Justice Department’s recent revisions to its internal guidelines concerning investigations involving members of the press support a common law privilege…. That is incorrect. Although the Department has made significant changes to parts of its internal guidelines — in particular, to the guidelines governing the notice that must be given to reporters before the government may obtain their business records through legal process — the basic requirements Risen cites (that the information is essential, unavailable from another source, and sought as a last resort) have been in place for decades and have not changed.

That said, Politico’s Josh Gerstein quotes an unnamed Justice Department official as saying that the “next steps in the prosecution are still being considered.” Could that mean the department may soften its stance on Risen? If not, the two parties will continue on a collision course, as Risen has said that he’ll do jail time instead of testifying about his sources.

The dissenting judge in the appeals court ruling, Roger Gregory, cited ample evidence of the link between Risen and Sterling, noting that the government had phone records and e-mail records, plus an instance in which Sterling showed “State of War” to a friend and remarked that “chapter nine discussed his work at the CIA.”

Whether or not Risen’s testimony is critical to the case against Sterling, there is indeed a split-personality dynamic at work in the case: In response to the uproar over its aggressive pursuit of the personal e-mails of Fox News reporter James Rosen and the phone records of Associated Press employees, the Holder Justice Department has struck a public profile of self-restraint vis-a-vis the media — at the same time that it continues insisting on Risen’s testimony.

Theodore J. Boutrous Jr., a partner at the law firms of Gibson, Dunn & Crutcher LLP and a First Amendment lawyer, notes the disconnect: “Given the Justice Department’s new media guidelines and the Administration’s support for a federal shield law it is hard to fathom how the Department can file a brief opposing a federal common law privilege, which would establish the very protections they say they support,” writes Boutrous via e-mail. “The government is taking very inconsistent positions. And the government’s assertion that it needs Risen’s testimony to bolster its case seems directly inconsistent with the new guidelines, which authorize subpoenas only where the reporter’s testimony is essential.”

At several points in the government’s brief, the emerging reality of national security journalism surfaces. Here’s one excerpt:

[N]one of the decisions Risen cites holds that a reporter who witnesses a crime and promises not to identify the perpetrator — which was the situation in Branzburg and in this case — has a privilege not to testify in a criminal proceeding. Indeed, every court of appeals to confront that situation has agreed with the panel.

Translation: If you score classified revelations from a key source, you’re not just getting a scoop.

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