The Washington PostDemocracy Dies in Darkness

The Supreme Court won’t intervene in the James Risen case. What’s next?

(Chip Somodevilla/Getty Images)
Placeholder while article actions load

The Supreme Court declined to step in Monday on behalf of James Risen, a New York Times reporter and author who faces potential jail time for not identifying a source.

So what does this mean for Risen’s case? Will the Pulitzer Prize-winning reporter be sent to prison? What does he have to say about the decision? And how does this fit into the Obama administration’s war on leaks? Here’s a primer on what is going on, where things stand and what could happen next.

Who is James Risen?

Risen is a reporter for the New York Times who writes about national security issues. In 2006, he won a Pulitzer Prize for his stories about the Bush administration’s domestic wiretapping program.  He continues to write about national security, and published a front-page story Sunday about how the National Security Agency is intercepting massive numbers of images shared to social media platforms to use in facial recognition programs. (This story, written with Laura Poitras, was based on documents obtained by Edward J. Snowden, the former contractor who leaked a trove of classified information to journalists.)

Why is he facing jail time in the first place? 

Risen is the author of the 2006 book “State of War: The Secret History of the CIA and the Bush Administration.” A chapter of that book detailed a CIA plan to sabotage Iran’s nuclear program. Prosecutors believe that Jeffrey A. Sterling, a former Central Intelligence Agency operative charged with leaking classified information, gave Risen information that was used for this chapter.

Risen’s legal history

Since his book’s publication, Risen has fought multiple summonses demanding that he testify about his sources. He was subpoenaed in 2008 by a federal grand jury in an attempt to get him to reveal his sources for the book. Risen fought that subpoena and did not have to testify before it expired. In 2010, he was subpoenaed again and ordered to provide documents and testify before a grand jury. Again, he fought the subpoena and it was quashed by a federal district judge.

In 2011, federal prosecutors subpoenaed Risen to try and force him to testify at Sterling’s trial. Prosecutors said that Risen could essentially help them admit statements from the book into the trial. Risen vowed to fight the subpoena at the time, calling the issue “a fight about the First Amendment and the freedom of the press.”

Judge Leonie M. Brinkema largely agreed to quash the subpoena, writing in July 2011 that a “criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook.” That decision was reversed last year, when a three-judge panel for the U.S. Court of Appeals for the Fourth Circuit in Richmond ruled in a 2-1 decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.”

Risen’s attorneys wrote in the appeal filed to the Supreme Court that for journalists such as Risen, “their jobs would be impossible without the ability to promise confidentiality to sources.” (The Washington Post was among the news organizations filing briefs on Risen’s behalf.)

Where things stand now that the Supreme Court weighed in 

This brings us to the Supreme Court’s action Monday. The court declined Risen’s appeal, offering no explanation, but  in refusing to overturn the lower court’s decision, the government’s contention that Risen should testify prevailed.

Risen has said he will go to prison rather than testify about his sources.

“I will continue to fight,” Risen wrote in an e-mail to The Post on Monday.

Dean Baquet, executive editor of the New York Times, praised Risen’s work and called the decision troubling in a statement issued Monday.

“Jim Risen is a groundbreaking national security reporter who continues to do powerful work,” Baquet said. “Journalists like Jim depend on confidential sources to get information the public needs to know. The court’s failure to protect journalists’ right to protect their sources is deeply troubling.”

An attorney for Risen said Monday that the issue now reverts to prosecutors, who must decide whether they want to push the issue further.

“The ball is now in the government’s court,” Joel Kurtzberg told the Associated Press. “It can elect to proceed in the Sterling trial without Jim’s testimony if it wants to. If they insist on his testimony and Jim refuses to testify, the court will need to have a hearing to determine if Jim is in contempt and, if so, what the consequence of that will be.”

The Obama administration, leaks and the press 

The case against Sterling is one of several the Justice Department has brought against people charged with leaking government secrets. This crackdown on leaks has been accompanied by investigations into journalists, which included the Justice Department secretly obtaining telephone records for Associated Press journalists and investigators extensively tracking the movements of a Fox News reporter. In addition, law enforcement officials looked extensively into Risen’s phone calls, banking records and travel history, a court filing noted in 2011.

Journalists have criticized the administration’s handling of leaks and reporters. Earlier this year, Risen called the Obama administration “the greatest enemy of press freedom that we have encountered in at least a generation.” Margaret Sullivan, public editor for the Times, has written about the administration’s “unprecedented attacks on a free press.” In a report for the Committee to Protect Journalists, former Washington Post executive editor Leonard Downie Jr. called the administration’s efforts to control information “the most aggressive I’ve seen since the Nixon administration.”

Several media representatives met last week with Attorney General Eric H. Holder Jr. to discuss the rules concerning subpoenas and other efforts to get information from journalists who have written about classified material or cited confidential sources.

So will Risen be sent to jail? 

It’s impossible to say for sure, but during the meeting last week with reporters, the nation’s top law enforcement officer indicated that jail time was unlikely.

“As long as I’m attorney general, no reporter will go to jail for doing his job,” Holder said, according to people who attended the meeting.

The Justice Department said that Holder wasn’t talking about any particular case. But as Charlie Savage noted after the meeting was made public, while Holder has made similar comments in the past, the newest statement specifically touched on reporters and imprisonment. And the case involving Risen is perhaps the most high-profile situation involving a reporter facing potential jail time.

This post has been updated.