Holder won't force Risen to reveal source

Attorney General Eric Holder has decided not to try to force New York Times reporter James Risen to identify a confidential source, defusing a high-profile showdown with the Fourth Estate that could have led to Risen being jailed for contempt of court, a source familiar with the situation said Friday.

“The attorney general has ruled out compelling him to divulge his source,” the person close to the process said.


Risen could still face a subpoena for the trial set in federal court in Alexandria, Virginia, next month for his alleged source, ex-CIA officer Jeffrey Sterling. However, if such a subpoena were to be is issued, it would require the Times reporter only to testify about such things as the general accuracy of his book “State of War” and that it relied on a source or sources that Risen will not identify.

Risen has previously expressed a willingness to testify about such basic facts, but more recently he has said that he is not inclined to testify at all. Risen and his lawyers did not immediately return messages seeking comment on Holder’s reported decision, first disclosed by NBC News.

There was no immediate word on whether the journalist would be asked to testify about the dates or places he acquired certain information, beyond any reference to that in the book. However, such a demand seems unlikely since it would almost certainly lead to the same kind of confrontation that Holder has repeatedly expressed a desire to avoid.

U.S. District Court Judge Leonie Brinkema had set a deadline of Tuesday for the Justice Department to decide whether to press for Risen’s testimony.

Sterling faces 10 felony counts for allegedly gathering classified information and leaking it to Risen, in particular details of a CIA plot to undermine Iran’s nuclear program by providing the country with flawed blueprints.

After Bush administration officials objected, the Times never ran the story. However, Risen included it in his book, reporting that the Iranians quickly discovered the ploy.

Under Justice Department rules, the approval of the attorney general is needed to subpoena a journalist under most circumstances.

Holder previously approved both a grand jury subpoena and a trial subpoena for Risen. However, after a series of controversies over aggressive tactics in leak investigations, Holder revised the DOJ guidelines last year to make it more difficult to demand a reporter’s testimony, phone records or emails.

In the months since those changes, the attorney general has repeatedly said that on his watch no journalist would go to jail for doing his or her job. President Barack Obama has gone even further, saying no reporter should be at “legal risk” for their journalism.

Holder’s new decision has the potential to bring a quiet end to the First Amendment disputes that have beset the leak investigation for about eight years. Under both the Bush administration and the Obama administration, the Justice Department pushed aggressively for Risen’s testimony.

Brinkema ruled in 2011 that Risen did not have to testify against Sterling at trial, agreeing that he could protect a source under so-called reporter’s privilege. Prosecutors initially indicated they would move forward with the trial, even without Risen’s testimony.

But after another dispute arose over testimony from CIA witnesses, prosecutors scuttled the trial by filing an appeal challenging Brinkema’s ruling on both issues.

The 4th Circuit U.S. Court of Appeals, acting over an impassioned dissent by one judge, overruled Brinkema and found no reporter’s privilege exists in federal criminal cases.

Risen took the issue to the Supreme Court, but in June it refused to hear the case.

A lawyer for Sterling, Ed MacMahon Jr., seemed distressed about the reported decision even though it could make the government’s case much harder to prove.

“We are waiting for the formal response as ordered by the Court. If the result is that the Attorney General does not want to issue the subpoena that his own Department of Justice fought for all the way to the Supreme Court, then three years of Mr. Sterling’s life have been wasted in litigation,” MacMahon wrote in an email.

Holder announced in September that he plans to resign once a successor is confirmed. Obama’s nominee to replace Holder, Brooklyn-based U.S. Attorney Loretta Lynch, is expected to have a Senate confirmation hearing in January or February.