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Should the Justice Department drop its subpoena of James Risen?

By Erik Wemple, Updated: July 20, 2013
Signicant news out of Richmond Friday on the press-freedoms front: The 4th U.S. Circuit Court of Appeals ruled that book author James Risen may not invoke a reporters privilege under the First Amendment to avoid testifying about a source in a criminal leak case brought by the Justice Department. Risen is a New York Times reporter, but his involvement in the case relates to his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. Chapter nine of the book, titled A Rogue Operation, describes a failed attempt by the CIA to have a former Russian scientist provide awed nuclear weapon blueprints to Iran. As noted in yesterdays court ruling, the book doesnt identify Risens sources for the classied information this chapter. In 2010, former CIA agent Jeffrey Sterling was indicted under the Espionage Act of 1917 for communicating national defense information to Risen for publication in State of War, among other charges. Pursuant to the case, the government sought to extract testimony from Risen with a May 2011 trial subpoena. It wanted Risen to directly identify Sterling as the source for his secret information. Risen fought the subpoena, alleging that the First Amendment or federal common law protected him from the governments quest for courtroom evidence. A federal district court then delivered a resounding success for Risen, citing a qualied First Amendment reporters privilege that may be invoked when a subpoena either seeks information about condential sources or is issued to harass or intimidate the journalist. It also wrote the following, which should delight the ink-stained set: A criminal trial is not a free pass for the government to rie through a reporters notebook. That ruling, however, didnt pass muster with the 4th Circuit appeals court, which ruled Friday in a 2-1 opinion authored by Judge William Byrd Traxler Jr. that:
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There is no First Amendment testimonial privilege, absolute or qualied, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised condentiality to his source. That clear enough for you, Mr. Risen? If not, theres more. The appeals ruling drew on the landmark 1972 Supreme Court case Branzburg v. Hayes, which famously declined to accord journalists an exemption from the average citizens obligation to give testimony in criminal proceedings. Heres a key passage from the Branzburg ruling, which the Traxler opinion notes approvingly: Until now the only testimonial privilege for unofcial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. Counsel for Risen cited a concurring opinion in Branzburg by Justice Lewis Powell in arguing for a more reporter-friendly interpretation of the case; the appeals court slapped back that construction. It also rejected arguments that federal common law exempts Risen from testifying about his sources for State of War. Theres a reason why the district court initially ruled in favor of Risen, for why the appeals court reversed the decision, for why Risen claimed that the various opinions in the Branzburg case could be construed in his favor and for why a strong dissent from one of the appeals court judges claimed that the government hadnt made a strong case for Risen testifying: Its that the courts cant quite agree on the prickly question of whether and under what circumstances reporters must answer subpoenas. It seems like weve had a split personality and different approaches at different times. Thats why I think the Supreme Court should step in, says Ted Boutrous, partner at the law rms of Gibson, Dunn & Crutcher LLP and a First Amendment lawyer. In a dissent that should comfort news executives across the land, Judge Roger Gregory at times sounded like national security correspondent Roger Gregory: [P]ublic debate on American military and intelligence methods is a critical element of public oversight of our government. Protecting the reporters privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the

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unprecedented volume of information available in the digital age including information considered classied it is important for journalists to have the ability to elicit and convey to the public an informed narrative lled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government. The dissenting judge also notes that the mishmash of opinions in Branzburg has led a number of courts to assert a qualied reporters privilege, often utilizing a three-part balancing test. One such test, writes Gregory, consists of making a clear and specic showing that the subpoenaed information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources. In considering whether the government has met the tripartite standard with regard to Risen, Gregory opens up the most fascinating aspect of the case the available evidence against Sterling, that is. The judge notes, among other things, that the government: *Can show phone records demonstrating several calls between Risen and Sterling; *Can offer evidence of e-mails between the two; *Can demonstrate that Sterling showed Risens book to Sterlings then-girlfriend in a bookstore and, without so much as opening it, Sterling told her that chapter nine discussed his work at the CIA. The book itself reveals details about Classied Program No. 1 that tend to link Sterling to chapter nine. For example, sections of the chapter are told from the point of view of the case ofcer responsible for Human Asset No. 1 which was Sterlings responsibility and the Government asserts that the chapter describes two classied meetings at which Sterling was the only common attendee. Theres more where that all comes from, but the judges message is clear: To advance its case against Sterling, the government doesnt need Risen to take the stand. In the judges own words: [T]he Government has failed to demonstrate a sufciently compelling need for Risens testimony. Thats a critical judgment, though it wasnt enough to sway Gregorys colleagues. The majority opinion is a clear victory for prosecutors, who can now call on Risen to spill the beans on his sources. A lawyer for Risen signaled that he and his client are evaluating our next steps. Implications for the political operation at the Justice Department arent quite so denitive, however. A ruling that a journalist must testify in a leak case couldnt have come at a less convenient time for Attorney General Eric H. Holder Jr., who is trying to fend off criticism that his prosecutors pounce too readily on reporters. Just this spring, Holder
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promised a wholesale review of Justice Department guidelines for subpoenas against journalists after an uproar over the departments secret seizure of Associated Press phone records and its naming Fox News reporter James Rosen a co-conspirator in a violation of the Espionage Act. Both actions stemmed from leak investigations. A week ago, Justice released its Report on Review of News Media Policies, which states that grabbing testimony from news outlets is an extraordinary measure, one that should be taken only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution. So how about applying those principles to the Risen case? Just how central is the authors testimony to the prosecution of Sterling? One prominent attorney has an opinion on that matter. They say theyre only going to seek information when its essential to a successful prosecution, says Boutrous, arguing that the department should consider dropping the subpoena. That, however, would take a tremendous act of willpower or generosity or self-restraint or something like that. They just want as much evidence as they can get, remarks Boutrous. Justice Department spokesman Peter Carr passes along this statement on the ruling: We agree with the decision. We are examining the next steps in the prosecution of this case. The Washington Post Company

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