Neither prosecutors nor defense attorneys will call a New York Times journalist to testify against a former CIA officer accused of being one of his sources. But jurors will get to hear portions of the reporter’s testimony from a pretrial hearing in the case.
That — at least for now — is the resolution to the strange saga of James Risen, a Pulitzer Prize-winning journalist and author who resisted prosecutors’ efforts to compel his cooperation in a leak case to the highest levels of the American justice system. What remains to be seen is whether prosecutors can still prove their allegations against his alleged source, former CIA officer Jeffrey Sterling, whose trial is scheduled to begin Tuesday.
Sterling was charged in 2010 with giving Risen material about a CIA effort to sabotage Iran’s nuclear program — an effort that Risen described as heavily flawed in his 2006 book, “State of War.” Federal prosecutors initially pursued the case zealously — even trying to subpoena the journalist to testify in the case —but the court proceedings languished as Risen fought the subpoena and vowed to go to jail before revealing his source.
Though the U.S. court system ultimately decided against Risen, Attorney General Eric H. Holder Jr. last month decided to back down. The reporter, he decreed, could be issued a subpoena, but federal prosecutors could not ask him to reveal his source.
Even with that decision, the eve of the trial saw a flurry of activity surrounding Risen. Prosecutors wrote in a court filing Monday that they did not intend to call the reporter as a witness — given that he would never reveal who gave him information — and asked that both they and defense attorneys be barred from making him take the stand. They also asked that jurors be told specifically they “should draw no inferences as to either the government or the defense based on Mr. Risen’s absence as a witness or any testimony he might have provided.”
Sterling’s attorneys resisted both requests, arguing that it was important for jurors to hear testimony from Risen that they said suggested he had more than one source of information, and that prosecutors’ political calculations should not affect their defense. U.S. District Judge Leonie M. Brinkema eventually asked if they would prefer to have Risen testify in person or if they could simply use as evidence a transcript from a pretrial hearing at which Risen answered some basic questions.
Sterling’s attorneys said they would prefer the transcript.
Brinkema still must decide which portions the jury will be allowed to hear; prosecutors said in court they would object to some sections being read in court. Brinkema also said she would determine later what instructions to give jurors on the matter.
Edward B. MacMahon Jr., Sterling’s attorney, said after the hearing that he needed to review the transcript to determine which passages were important for jurors to hear. A Justice Department spokesman declined to comment. Risen’s attorney declined to comment before the hearing and did not immediately respond to an e-mail sent later.
Sterling’s trial is notable in part because the Obama administration has pursued eight leak cases, more than the total under all previous administrations combined. Brinkema noted Monday, too, that the trial’s timing might warrant additional questioning of jurors about some current events: including terrorist activity in France and the revelation that prosecutors had recommended that former CIA director David H. Petraeus face charges for allegedly leaking classified documents to his mistress and biographer.
The case against Sterling seems on its face to be hardly a slam-dunk for prosecutors. MacMahon has argued that without Risen’s cooperation, federal prosecutors could not establish that Sterling leaked material in the Eastern District of Virginia — a point prosecutors must prove to establish venue in the case. Brinkema asked specifically about the legal standard for making that determination.
The trial is expected run, at most, until the end of January. The parties will begin questioning prospective jurors at 10 a.m. Tuesday.