ALEXANDRIA, Va. — A New York Times reporter will be subpoenaed to answer questions ahead of an upcoming trial of a former CIA officer accused of leaking classified information, though a Tuesday hearing indicated there is much confusion about what the journalist may be asked to reveal.
Prosecutors say they will not ask James Risen if ex-CIA man Jeffrey Sterling was his anonymous source for part of the 2006 book “State Of War” that detailed a botched CIA effort to cripple Iran’s nuclear program. However, they do want to know if the two had a prior, on-the-record source relationship.
Risen’s lawyer, Joel Kurtzberg, said at Tuesday’s hearing that he is not sure whether his client is willing to answer the questions that prosecutors want to pose.
Furthermore, defense attorneys indicated they may also have their own questions, which puts Risen at risk of being found in contempt of court if he refuses to answer.
U.S. District Judge Leonie Brinkema ordered that a moot hearing of sorts will be held next month, ahead of Sterling’s trial, to test what questions will be asked, what Risen will answer, and what questions the judge will deem relevant. Brinkema said Risen will be subpoenaed and required to attend the January hearing.
Risen has been unwilling to testify in the case about anything but most basic facts — like confirming that he is the author of the book and that he stands by its reporting — saying he made a commitment to his sources to protect their anonymity. Sterling’s case has been held up for more than three years as courts have decided whether Risen would be required to testify. A federal appeals court in Richmond ordered that Risen can be compelled to testify just like any other citizen, and that his role as a journalist does not shield him from a subpoena. The appellate court overruled Brinkema, who had been willing to quash most of what prosecutors sought from Risen.
Still, press advocates have urged the Justice Department to respect journalists’ need to protect confidential sources, and Attorney General Eric Holder has responded with promises not to jail journalists who refuse to disclose their sources to the courts.
And last week, it appeared that Risen had won a major victory when numerous press outlets reported that the Justice Department had agreed it would not compel Risen to testify about his anonymous source.
On Tuesday, though, as prosecutors detailed what they would seek from Risen, it was unclear whether Risen would agree to the limitations. And it became equally clear that Risen may have as much to fear, if not more, from defense lawyers, who would be free to cross-examine Risen and could even seek to subpoena him themselves.
Edward MacMahon, one of Sterling’s lawyers, told Brinkema that “the notion we can sanitize this by limiting (his testimony) to two or three questions is hard for us to fathom.”
He declined comment after the hearing on whether he may seek to subpoena Risen.
Prosecutor James Trump said there is much more uncertainty about the questions Risen might face from the defense than there is about what prosecutors will seek.
“Defense counsel can ask any questions he wants,” Trump said. “We have no idea what kind of questions the defense might want to ask.”
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