Whistleblower advocates worry that the prison time ex-CIA officer Jeffrey Sterling, left, is facing in the wake of the trial will wind up silencing federal employees seeking to expose government malfeasance or ineptitude. Holder plugs his legacy on leak cases He wins a conviction against a former spy without forcing a journalist to reveal his source.

A federal jury’s decision Monday to convict a former CIA officer for leaking top-secret information to a New York Times reporter was a big win for prosecutors — and for Attorney General Eric Holder’s new approach to handling sensitive cases involving journalists.

Holder decided to spare the reporter in the case, New York Times correspondent James Risen, from testifying against his sources. The move could become an important part of the soon-to-depart attorney general’s legacy and a guidepost for future government leak cases given that the government won the case without much testimony from the reporter who received the information.


Holder and his allies are arguing that they have helped secure journalists’ First Amendment rights with the maneuver, but whistleblower advocates worry that the prison time ex-CIA officer Jeffrey Sterling is facing in the wake of the trial will wind up silencing federal employees seeking to expose government malfeasance or ineptitude.

Holder perplexed and irritated many Justice Department lawyers with his decision last month effectively taking Risen’s testimony off the table after a seven-year court fight in which the government defeated Risen’s claims that reporter’s privilege protected him from testifying against Sterling.

The attorney general’s action was consistent with a series of moves over the past year and a half in which he sought to demonstrate greater sensitivity to the concerns of journalists. The recalibration was prodded not by Risen’s predicament or a sudden bout of introspection, but by a political firestorm that broke out in 2013 over prosecutors’ aggressive investigations of leaks to the Associated Press and Fox News.

Soon after the jury returned its string of nine guilty verdicts in the CIA leak case Monday, Holder claimed the result vindicated his effort to pursue such prosecutions without trying to force testimony from unwilling reporters.

“As this verdict proves, it is possible to fully prosecute unauthorized disclosures that inflict harm upon our national security without interfering with journalists’ ability to do their jobs,” the attorney general said in a statement.

However, other lawyers said it was unclear whether the government’s success against Sterling without much help from Risen signaled that approach could be duplicated or whether it was unique to the situation at hand.

“They had a pretty decent circumstantial case” said Randall Eliason, a former federal prosecutor who now teaches law at George Washington University. “It was a high degree of difficulty, but they had a lot of evidence pieced together, which turned out to be enough.”

“It would be hard to generalize from this and say in future leak cases we don’t need to even try to speak to a reporter,” he added.

Eliason also pointed out that Risen was highly unlikely to ever name his source, so the effort to force him to testify amounted to a kind of sideshow that ultimately was going to leave the prosecution case right where it ended up.

“In part, it was surrendering to reality,” the ex-prosecutor said of Holder’s decision to exempt Risen from the potential of contempt for refusing to reveal his sources. “You were not really gaining anything by taking all that fallout over putting a reporter in jail.”

Former Holder spokesman Matthew Miller agreed, arguing that the downside to Holder’s decision was minimal.

“Prosecutors by their nature never want to have a tool taken away from them, but the fact is leak cases almost never involve a journalist’s testimony anyway,” Miller said. “The department has lost a tool that, even in the rare circumstances where it was used, was largely ineffective because most reporters just won’t testify.”

Still, regardless of whether Risen’s testimony would ever have been forthcoming, it’s clear that without decisions by top officials like Holder and his former deputy James Cole, prosecutors would have continued their battle to press the reporter for at least some incriminating testimony against Sterling.

Such efforts did prove effective in one high-profile case: the prosecution of Vice President Dick Cheney’s aide Scooter Libby on charges of obstructing a leak probe. New York Times reporter Judith Miller spent 85 days in jail for contempt before she agreed to testify to a grand jury after Libby called her to release her from her promise of confidentiality.

As Holder prepares to leave office when his successor is confirmed — perhaps as soon as next month if the Senate approves Obama’s nomination of Loretta Lynch — his handling of the Sterling case seems likely to be one of the final chapters in his legacy on the Justice Department’s relationship with the press.

“To the extent that [Holder’s] decision in this case makes future federal prosecutors think twice before seeking to compel a reporter’s testimony as a first resort, that’s a very good thing and an important part of his legacy,” a source close to Holder said, asking not to be named. “It will institutionalize a process where some pause is taken by prosecutors and potentially future attorneys general.”

Miller said Holder has been committed for some time to fixing his and the department’s relationship with the media and First Amendment advocates.

“I think he realized in the summer of 2013 that the balance between the press and the Department of Justice had gotten too far out of whack and the department was being too aggressive,” the former aide said. “He saw his job in his remaining time in office to get the process back in balance and leave a better process.”

The furor over the AP and Fox News probes that tumbled into public view at that time became so intense that President Barack Obama was pulled into the controversy.

“Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law,” Obama said in May 2013.

Holder’s decision to drop demands for Risen’s testimony about his sources could help dampen concern about the treatment of journalists, but it won’t extinguish complaints that the unprecedented flurry of nine leak-related prosecutions during the Obama administration has chilled whistleblowers from taking their concerns to the media. In fact, Sterling’s conviction on every count sent to the jury — and the prospect of a lengthy prison term for the ex-CIA officer — might embolden prosecutors intent on stamping out leaks.

“There are all these cases that are legally plausible that they could win in court. The question is whether they should be bringing them, as a matter of policy or morality,” said Columbia Law School professor David Pozen. “That a case that is brought to trial ended up going well for the prosecution when the laws are written so broadly doesn’t really surprise me.”

One factor that could affect the impact of the Sterling case on future whistleblowers is whether other potential leakers think he had a legitimate reason to expose the CIA program at the heart of the case. The jury’s verdict doesn’t clearly resolve that question, which the trial also left muddled.

Prosecutors said Sterling was a disgruntled ex-employee who concocted flaws in the CIA’s top-secret effort to target Iran’s nuclear program after his discrimination lawsuit against the agency foundered. The defense never conceded that the former spy leaked anything.

Instead, Sterling’s lawyers argued that he raised legitimate concerns through legal channels with the Senate intelligence committee about an operation which seemed ham-handed and potentially dangerous. CIA witnesses called the operation a success but never produced any proof it deterred Iran’s nuclear program.

Despite the government’s triumph in the Sterling case, Pozen said he’s not sure it will produce an uptick in leak prosecutions. He said the Obama administration seemed to have passed a “tipping point,” where the surge in leak cases has abated after figures like Obama and Holder began speaking out about the consequences of pressing too hard in such probes.

One key test the Justice Department is facing is whether to file charges against former CIA Director and retired Army Gen. David Petraeus for allegedly sharing classified information with his mistress. That decision, expected to be made after Holder leaves office, will highlight the fact that top officials almost never face leak-related charges.

“Sterling was a fairly low-level player who was not part of the game of leaks that the higher levels of officialdom play,” Pozen said. “It’s clear Petraeus is going to be a much harder decision.”