Risen rules

New York Times reporter James Risen was subpoenaed to testify in the prosecution of CIA officer Jeffrey Sterling. Sterling is under prosecution for blowing a CIA program intended to undermine Iran’s nuclear program. The program was subject to a security classification indicating its extreme sensitivity.

To no discernible public good, Risen publicized the program in his book State of War: The Secret History of the CIA and the Bush Administration. The government has alleged that Sterling was Risen’s source and subpoenaed Risen to testify in Sterling’s prosecution; Risen would prefer not to testify. He declared he will subject himself to imprisonment rather than testify.

Paul Mirengoff wrote about Risen’s subpoena and the pending trial of Sterling in “James Risen would prefer not to; Eric Holder must decide what he prefers.” I have written about the matter several times, including this past October in “The Risen Heist” and this past June in “Eric Holder would prefer not to.”

For a full understanding of what Risen has wrought here I urge interested readers to read Gabriel Schoenfeld’s Weekly Standard articles “Not every leak is fit to print” (2008) and “What gives?” (2010) as well as Schoenfeld’s Power Line post “A Risen in the sun.” This is a most serious matter.

I have thought that Risen ought to be prosecuted along with Sterling, but the government has instead simply treated Risen as a citizen to whose testimony it is entitled. Assuming Sterling was the perpetrator, the government sought Risen’s identification of Sterling as his source for the betrayal of the CIA program. Risen’s claim of privilege was rejected by the federal court of appeals in which the prosecution is pending; the Supreme Court declined to take up Risen’s claim of privilege. Risen’s claim of privilege has no basis in law.

Both Paul and I predicted that Eric Holder’s Department of Justice would relent in seeking Risen’s identification of his source in Sterling’s prosecution. In December the Department of Justice leaked its deliberations over an offer to this effect. The Los Angeles Times reported the leak in “New York Times reporter James Risen would be offered deal to avoid jail.” The Times reported that the government had formulated a face-saving deal under which Risen would limit his testimony to circumstances surrounding his reporting.

Risen’s lawyer stated that no deal has actually been presented to Risen. The leak thus seemed the predicate to surrender on Risen’s terms, the precise terms to be worked out.

Risen testified at a pretrial hearing last week. The Los Angeles Times reports:

In a pretrial hearing last week, lawyers for both sides attempted to gauge which questions, if any, Risen would be willing to answer.

Risen initially refused to respond directly to even general questions about the case, such as whether he had confidentiality agreements with sources while doing the reporting for “State of War.”

The reporter later changed his mind after a prosecutor showed him years-old affidavits in which he’d answered the same questions. Still, Risen said that he would not identify his sources or even say where he was when he received the information.

In the event, Risen himself formulated the terms of his testimony. Call them the Risen Rules.

Following the pretrial hearing, the government moved to have Risen barred as a witness along with his pretrial testimony. Josh Gerstein takes up the story:

New York Times reporter James Risen won’t be called to the witness stand at a leak trial for one of his alleged sources, but jurors may hear some of the words he uttered at a pre-trial hearing last week, according to lawyers and the judge overseeing the case.

Both the prosecution and the defense in the case against former CIA officer Jeffrey Sterling said definitively Monday that they will not call him as a witness at the trial set to begin with jury selection Tuesday morning.

However, U.S. District Court Judge Leonie Brinkema turned down the prosecution’s bid to block all testimony from Risen. She said the defense will be permitted to tell jurors about comments Risen made at a pre-trial hearing last week where he said he had mu[l]tiple sources for information in the chapter of his 2006 book “State of War” at the heart of the case. Prosecutors contend that chapter contains highly classified information Sterling leaked about a CIA effort to undermine Iran’s nuclear program.

Brinkema said a defense lawyer will ask the questions in the transcript of that session and one of her law clerks will read aloud a portion of the testimony Risen gave.

Prosecutors had asked that Risen be declared “unavailable” to testify since he has vowed not to disclose the identity of his confidential sources even if he were sent to jail for contempt.

However, defense lawyer Edward MacMahon said Risen wasn’t truly unavailable, but had essentially been excused from testifying as a result of a decision by the government.

“He’s not unavailable in a legal sense,” MacMahon declared at a court hearing Monday. “The government did not even ask him questions [about the identity of his source.] It’s politically unavailable is what it is.”

MacMahon said the government had made a series of decisions to blinder their investigation of Risen and those unexplored possibilities are fair game for the defense. “Why didn’t they subpoena Mr. Risen’s e-mails? Why didn’t they subpoena Mr. Risen’s phone calls?” the defense lawyer asked, calling it “really unfair and unconstitutional” to preclude the defense from bringing up such issues.

According to Gerstein, Judge Brinkema was not amused: “The judge noted that a federal appeals court agreed with the government that it could seek to force Risen to testify, but now Holder is electing not to.”

Gerstein adds this:

While Risen is off the hook in terms of testifying at the trial, he may still get roughed up a bit in the courtroom. A prosecutor asked Brinkema to drop a reference she planned to make to jurors about Risen being “a Pulitzer Prize-winning New York Times journalist.”

“There are a lot of inaccuracies in this chapter,” prosecutor James Trump said. “So, we are not going to be applauding Mr. Risen’s research.”

But for the gravity of the matter, farce would not be too strong a word to describe what Eric Holder has wrought here. At the least, he has taken a bad situation and turned it into a fiasco.