The Justice Department on Monday subpoenaed a New York Times reporter to testify in a controversial leak case against an ex-CIA officer who was one of the journalist’s sources in a book on the agency’s Iran operations.
Prosecutors said in a court filing to compel testimony from James Risen that they anticipate the reporter will attempt to quash the subpoena. Judge Leonie M. Brinkema of the U.S. District Court in Alexandria, Va., who is handling the case, quashed a subpoena issued to the reporter in November. Risen has said that he has declined to testify and never provided prosecutors with information in the case involving Jeffrey Sterling.
The DOJ lawyers said federal law does not afford Risen a special privilege that would allow him to withhold testimony. They said his testimony would be pertinent to a jury.
“Mr. Risen is an eyewitness to those crimes,” the prosecutors wrote in their court filing. “Mr. Risen’s testimony, like that of any other citizen in his situation, should therefore be admitted to permit the jury to carry out its truth-seeking function.”
Joel Kurtzberg, an attorney for Risen, told National Public Radio that his client intends to fight the subpoena.
DOJ spokeswoman Laura Sweeney told NPR that the Department attempts to “strike the proper balance between the public’s interest in the free dissemination of information and effective law enforcement.” The Attorney General must sign off on subpoenas issued to journalists.
“We make every reasonable effort to attempt to obtain information from alternatives sources before even considering a subpoena to a member of the press, and only seek information essential to directly establishing innocence or guilt,” Sweeney told NPR.
Assistant Attorney General Lanny Breuer of the DOJ Criminal Division, U.S. Attorney Neil MacBride of the Eastern District of Virginia and Trial Attorney Timothy J. Kelly, in addition to Senior Litigation Counsels James L. Trump and William M. Welch II, the former Public Integrity Section chief who supervised the bungled prosecution of Sen. Ted Stevens (R-Alaska), submitted the court filing.
Attorney General Eric Holder ultimately dismissed the case against Stevens in 2009.
A preliminary draft of a DOJ Office of Professional Responsibility report on the allegations that prosecutors withheld exculpatory evidence from the Stevens defense concluded that two Assistant U.S. Attorneys engaged in misconduct. But Welch was cleared of the misconduct allegations.
Risen is not the first New York Times journalist to receive a subpoena from the DOJ involving a CIA matter. In the 2000s, prosecutors tried to get then-New York Times reporter Judith Miller to testify in the leak case involving CIA operative Valerie Plame.
