Federal prosecutors still intend to subpoena a New York Times reporter who has refused to testify in a criminal leak case against one of his alleged sources, but they are willing to limit their questions to mostly basic, noncontroversial matters, such as whether the journalist wrote the book and articles at the center of the case.
Much is still to be decided about whether and under what circumstances reporter James Risen will take the stand during the trial of former CIA agent Jeffrey Sterling, who is accused of being one of Risen’s sources. No matter what prosecutors do, defense attorneys will be able to ask Risen their own questions. And Risen’s attorney said at a hearing Tuesday that he was not sure whether his client would even commit to answering the limited questions proposed by prosecutors.
The matter has been watched closely from the start, especially by free-press advocates and those in the intelligence community. Risen has vowed in the past to go to prison rather than testify, and in an attempt to avoid that outcome, Attorney General Eric H. Holder Jr. decided last week that he would not force Risen to reveal his confidential source.
The criminal case dates to 2010, when federal prosecutors in Alexandria charged Sterling with unauthorized retention and communication of national defense information, obstruction of justice and other counts. Sterling, who was assigned to a classified program meant to impede Iran’s efforts to acquire nuclear weapons, was accused of being a source for Risen’s book “State of War.”
Federal prosecutors issued a subpoena to Risen to testify in the case, and he fought it to the Supreme Court, which declined to intervene. That was a loss for both Risen and news organizations, as it meant there would be no further review of a federal appeals court decision that said reporters could be compelled to reveal their anonymous sources in leak cases.
In a filing Tuesday, prosecutors indicated they now want Risen only to confirm that he wrote the book and articles for which they believe Sterling was the source, that he had a previous “non-confidential reporter-source relationship” with Sterling and that he had consistently refused to identify his sources in the case. Deputy Attorney General James M. Cole insisted that prosecutors not ask about the date Risen got the information and the location where he got it, a federal official said.
Joel Kurtzberg, Risen’s attorney, said Tuesday that while his client had been willing to confirm some of that information in years past, he was not sure of the journalist’s current thoughts on the matter. Prosecutors noted in court, too, that defense attorneys were not restricted in what questions they could ask.
Edward B. MacMahon Jr., an attorney for Sterling, said he was just reviewing the prosecutors’ filing, but he noted that their investigation into Risen was extensive and said the idea of limited questioning of the reporter was “hard for us to fathom at this point in time.” He said prosecutors had obtained Risen’s FedEx records, credit card receipts and even some type of Western Union transaction involving at least one of his children.
U.S. District Judge Leonie M. Brinkema ultimately scheduled another hearing for Jan. 5. The proceeding — which the parties referred to as a “moot” — is expected to be an unusual one in which Risen will face questions outside of the presence of a jury so prosecutors and defense attorneys can see exactly what he is willing to say at trial. Brinkema issued a subpoena requiring him to appear for that hearing.
What, precisely, will happen after that, though, remains unclear. Brinkema mused in court that the “moot” could substitute for Risen’s in-court testimony in front of a jury, and Kurtzberg suggested that prosecutors and defense attorneys could simply agree on a stipulation about the reporter’s testimony that would be read to the jury.
MacMahon said that when he had discussed the idea with prosecutors in the past, he had viewed the moot as a sort-of “dry run” to see what Risen would and would not say at the trial. Brinkema said she would prefer not to have Risen answering some questions — and declining others — during the trial, which is scheduled for Jan. 12.
A Justice Department spokesman and a spokesman for the U.S. attorney’s office for the Eastern District of Virginia, which is prosecuting the case, declined to comment after the hearing. Sterling’s attorneys said they were awaiting the Jan. 5 hearing to see how the case would move forward.
“We don’t know what Mr. Risen’s going to answer, if anything, so it all remains to be seen,” said Barry Pollack, another of Sterling’s attorneys.
Sari Horwitz contributed to this report.