New York Times reporter James Risen today asked the Supreme Court to recognize a reporter’s privilege that would allow him to withhold testimony in the leak trial of a former Central Intelligence Agency officer.
A federal appeals court in November approved Risen’s motion to delay proceedings in the leak investigation while he makes an appeal to the nation’s highest court. Risen asked for a stay after a three-judge panel of the U.S. Court of Appeals for the 4th Circuit in July ordered him to testify in the trial of former CIA officer Jeffrey Sterling, who is charged with providing Risen with classified information. Justice Department lawyers told the court they did not object to the delay.
“A stay would maximize the efficient use of judicial resources by permitting the exhaustion of appeal on the issues presented before the case proceeds to trial,” Robert A. Parker wrote on behalf of the Justice Department in its reply.
In his petition for review, Risen urged the Justices to take the case in order to resolve a split among the lower courts on the issue of a reporter’s privilege.
DOJ and Sterling have 30 days to reply.
Parker said DOJ did not expect the high court to accept Risen’s petition. In a brief filed with the 4th Circuit in August, 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 former 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.
In today’s petition, Risen called the department’s revised regulations “totally inadequate.”
The reporter is being represented by David N. Kelley and Joel Kurtzberg of Cahill Gordon & Reindel LLP.