Federal prosecutors hinted Friday that they still intend to subpoena a New York Times reporter to testify in a case against a former CIA agent — a move that could put them in the position of advocating for penalties against a journalist for doing his job.
Assistant U.S. Attorney James Trump said in court that the “prosecutors’ end” of the subpoena process was “nearly complete” but that they still needed to comply with new Justice Department guidelines governing investigations involving the news media. He said those guidelines require approval from the director of national intelligence and the attorney general before such cases can proceed — a process that he estimated would take “a few weeks.”
While Trump did not commit to issuing a subpoena, his comments suggest another legal showdown with New York Times reporter James Risen in the case of former CIA officer Jeffrey Sterling. Risen fought a previous subpoena to the Supreme Court, which declined to intervene after a lower court said Risen and other reporters could be compelled to reveal their anonymous sources in leak cases.
Sterling, who was assigned to a classified program meant to impede Iran’s efforts to acquire nuclear weapons, was indicted in 2010 on charges of unauthorized retention and communication of national defense information, obstruction of justice and other counts. He is accused of being a source for Risen’s book “State of War.” His case has stalled, in large part because of Risen’s court battles.
On Friday, U.S. District Judge Leonie Brinkema set jury selection in Sterling’s trial for Jan. 8.
Risen has vowed to go to prison rather than testify, although Attorney General Eric H. Holder Jr. has suggested that he intends to try to avoid that outcome. If Risen refuses to comply with a subpoena, prosecutors could ask that he be jailed for contempt or penalized in another way.
Sterling’s attorneys have said they need to know what action the government intends to take as they prepare their defense.
Brinkema also pressed Trump about Risen on Friday, saying she “would think the Risen matter needs to get addressed as quickly as possible” and urging the assistant U.S. attorney to “get that subpoena out as soon as possible, if you’re going to issue a subpoena.”
Trump acknowledged that “there will be issues that will come up with respect to” Risen, but he said he could not speak for what actions the reporter’s attorneys might take. Trump offered no hint as to what penalties prosecutors would seek if Risen refused to testify. Risen and his attorney did not immediately respond to messages seeking comment.
Trump, U.S. Attorney Dana Boente and a Justice Department spokesman declined to comment beyond what was said at the hearing.