Taking a stance that could set the stage for a major court battle, the Department of Justice says it still wants to force New York Times reporter James Risen to testify about his confidential sources at the trial of a former Central Intelligence Agency office accused of leaking top-secret information.
In a court filing on Wednesday, federal prosecutors appealed a ruling by U.S. Judge Leonie Brinkema of the Eastern District of Virginia that Risen did not have to identify his sources during the trial of Jeffrey Sterling, according to a report by Josh Gerstein on Politico. Brinkema ruled that Risen’s testimony was covered by a “reporter’s privilege,” and that the government had not shown that that he was essential to proving the case against Sterling.
Sterling faces 10 felony counts, including charges that he violated the Espionage Act by disclosing top-secret information to Risen about a CIA effort to undermine Iran’s reputed nuclear weapons program by giving the country flawed nuclear designs, an episode recounted in Risen’s 2006 book “State of War.”
Sterling’s trial was to have opened with jury selection on Monday but was indefinitely postponed after the government indicated it planned an appeal, Gerstein reported on Politico. If the government persists with its appeal, it would be heard by the U.S. Court of Appeals for the 4th Circuit, based in Richmond. The Sterling case is unusual, in that the government wants to conceal the identities of some witnesses, as Main Justice reported recently.
“If they go forward with this….we would expect to oppose this appeal and to fight it,” an attorney for Risen, Joel Kurtzberg, said on Wednesday, according to Politico. Thus, a major First Amendment fight appears headed to the higher courts.