Justice Department Asks Court Not to Overturn Risen Ruling
By Rebecca Cohen | August 27, 2013 11:55 am

The Justice Department on Monday urged a federal appeals court not to overturn a ruling that would force New York Times reporter James Risen to testify against his suspected source in an ongoing criminal case.

New York Times reporter James Risen

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled last month that Risen must testify in the trial of former CIA officer Jeffrey Sterling, who is charged with providing Risen with classified information. Risen has petitioned to have his case heard by the full court.

In a brief filed Monday, federal prosecutors said the panel’s finding that there is no common law reporter’s privilege in criminal cases has a sound basis in Supreme Court precedent.

“None of the decisions Risen cites holds that a reporter who witnesses a crime and promises not to identify the perpetrator… has a privilege not to testify in a criminal proceeding. Indeed, every court of appeals to confront that situation has agreed with the panel,” wrote prosecutors, including outgoing U.S. Attorney Neil MacBride and acting Assistant Attorney General Mythili Raman.

Risen’s lawyers have also asked the Justice Department to drop its case against the reporter, citing DOJ guidelines released in July that give reporters greater protection from subpoenas in leaks cases. DOJ’s filing rejected that argument.

“Although the department has made significant changes to parts of its internal guidelines—in particular, to the guidelines governing the notice that must be given to reporters before the government may obtain their business records through legal process—the basic requirements Risen cites (that the information is essential, unavailable from another source, and sought as a last resort) have been in place for decades and have not changed,” the filing said.

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