It was evident that Jeffrey Sterling was a logical suspect to have revealed a top-secret program to reporter James Risen, pictured. CIA leak trial enters final showdown

The prosecution and defense in the leak trial of an ex-CIA officer each landed significant blows Wednesday as the unusual legal showdown hurtled toward a conclusion in a Virginia courtroom. The judge in the case dismissed one of the 10 counts against former spy Jeffrey Sterling, but let nine others stand heading into closing arguments Thursday.

After both sides rested their cases Wednesday afternoon, it was evident that the defendant was a logical suspect to have revealed a top-secret program to undermine Iran’s nuclear program to New York Times reporter James Risen, who wrote about the project in his 2006 book “State of War.”


However, it was far from clear whether jurors would be convinced that the government had proved its case beyond a reasonable doubt and had ruled out all others who could have served as potential sources for Risen.

The most damaging testimony against Sterling to emerge on Wednesday was FBI agent Ashley Hunt’s statement that lawyers for the former spy told the CIA in 2003 that they had a client who was threatening to go to the media to disclose details of a classified program.

The message from Sterling’s attorneys came about six weeks before Risen began calling the CIA to ask questions about a program the spy agency undertook to undermine Iran’s nuclear program by providing faulty weapons designs to Tehran.

But earlier Wednesday, the seventh day of the trial, defense attorneys poked holes in the government’s case. Hunt testified that around the time Risen began asking questions about the program in May 2003, she believed the most likely source for the leak was someone on the Senate Intelligence Committee. Sterling had talked to the panel’s staffers in March of that year about his concerns that Iran might be able to take advantage of flaws in the designs, in part because they were too obvious.

Asked by defense attorney Edward MacMahon whether she had written notes at that time indicating that she believed someone on that panel’s staff was responsible for the leak, Hunt said, “I probably did.” Further adding to suspicion surrounding the committee’s involvement, MacMahon said Hunt had written in 2006 that the Senate committee “was unified at every level in its opposition to [the FBI] investigation.”

Jurors had heard Tuesday from another defense lawyer that Bill Duhnke, the staff director of the Senate panel at the time, declined to cooperate with the FBI’s investigation. U.S. District Court Judge Leonie Brinkema had told the jury to disregard that statement, but on Wednesday it heard directly from Hunt that Duhnke had blown off the FBI’s requests to discuss the leak.

The FBI agent said she spoke to Duhnke only “briefly” about the disclosure and that he had declined to talk with her again.

Duhnke, who in recent years served on the Senate Appropriations Committee and has reportedly moved to the Banking Committee, did not respond to emails from POLITICO seeking comment. He did not testify in the case.

A prosecutor indicated that resistance to the FBI probe came from Senate lawyers, but the nature of the objection was unclear. One current Senate Intelligence Committee staffer and two former staffers testified as prosecution witnesses during the trial.

The publicity about law enforcement attention to possible leaks out of the Senate could make congressional staffers more jittery about disclosing sensitive information to the media. One former staffer testified Tuesday about having been fired by the intelligence committee in 2003 for discussing with another Hill staffer an unclassified aspect of the panel’s actions on intelligence legislation.

Sterling’s defense scored a small win Wednesday afternoon when Brinkema threw out one of the 10 felony counts the ex-CIA officer is facing: a charge of mail fraud relating to the fact that Risen’s book containing details of the top-secret program was shipped from New Jersey to bookstores in Virginia.

“I think the mail fraud is a real stretch as a matter of law,” the judge said.

However, the judge refused the defense’s requests that she throw out several other counts on grounds that the prosecution has produced no direct evidence that Sterling kept classified documents in Virginia or leaked information to Risen in Virginia.

Under the law, the prosecution is required to prove the likelihood that Sterling committed the alleged crimes in the federal court district covering eastern Virginia. Though he lived in Virginia in 2003, he later moved to Missouri.

While the FBI found some emails between Risen and Sterling, none contained classified information or details about the Iran-related program.

“It couldn’t have been more clear they don’t know where [the leak] happened,” MacMahon said of the government.

However, prosecutor Jim Trump said the “only place” Sterling could have kept a key document Risen wound up publishing was at Sterling’s ?home in Virginia.

“There’s enough smoke in this case that I think it can properly go to the jury. We’ll see what the jury does,” Brinkema said.

While FBI agent Hunt was on the stand Wednesday, the defense used its cross-examination to press its claims that the FBI conducted an incomplete investigation by failing to explore whether others who knew about the Iran operation might have had contact with Risen.

While Hunt initially said she had obtained the phone records of the CIA manager running the Iran program, who was referred to in court as “Bob S.,” she later said she couldn’t find those records and may never have had them.

“I left for another assignment three years ago, and I don’t know where all the documents are located,” she said.

Hunt said she didn’t know for a couple of years after her investigation began that one Senate staffer, Doug Stone, had fielded a call from Risen soon after meeting with Sterling about his concerns on the Iran operation. Stone denied Tuesday that he disclosed anything about the situation to Risen.

Hunt conceded that she wrote in a note in 2003 that it was “unlikely” Sterling was the source because he had a pending discrimination lawsuit against the CIA and a potential settlement could be jeopardized by angering the agency.

Sterling elected not to testify in his own defense. His lawyers called only a single witness, who spent just a few minutes on the stand. Howard Gilby, the father of the owner of a house where Sterling lived in Missouri, testified that he gave his daughter a computer that was placed in Sterling’s room.

Gilby, who owns a construction firm, said he had used a scheduling program named Merlin and that traces of it might have still been on the computer when he gave it to his daughter. Merlin is also one of the code names for a Russian engineer the CIA used to deliver the flawed nuclear designs to the Iranians. Risen refers to the project in his book as “Operation Merlin.”

The defense appears set to argue to the jury that there was little reason for Sterling to present evidence because the prosecution, which has admitted its case is circumstantial, fell well short of proving that Sterling leaked any classified information to Risen.

Risen refused to testify about the identity of his confidential sources for the book. The government won a court ruling that the journalist had no protection against testifying, but Attorney General Eric Holder elected not to press Risen by threatening him with jail or fines.

Jurors never heard from Risen directly but were told that he testified previously that he had more than one source for the relevant chapter of his book “State of War.”