Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Risen finally off hook in leak trial

New York Times reporter James Risen won't be called to the witness stand at a leak trial for one of his alleged sources, but jurors may hear some of the words he uttered at a pre-trial hearing last week, according to lawyers and the judge overseeing the case.

Both the prosecution and the defense in the case against former CIA officer Jeffrey Sterling said definitively Monday that they will not call him as a witness at the trial set to begin with jury selection Tuesday morning.

However, U.S. District Court Judge Leonie Brinkema turned down the prosecution's bid to block all testimony from Risen. She said the defense will be permitted to tell jurors about comments Risen made at a pre-trial hearing last week where he said he had mutiple sources for information in the chapter of his 2006 book "State of War" at the heart of the case. Prosecutors contend that chapter contains highly classified information Sterling leaked about a CIA effort to undermine Iran's nuclear program.

Brinkema said a defense lawyer will ask the questions in the transcript of that session and one of her law clerks will read aloud a portion of the testimony Risen gave.

Prosecutors had asked that Risen be declared "unavailable" to testify since he has vowed not to disclose the identity of his confidential sources even if he were sent to jail for contempt.

However, defense lawyer Edward MacMahon said Risen wasn't truly unavailable, but had essentially been excused from testifying as a result of a decision by the government.

"He's not unavailable in a legal sense," MacMahon declared at a court hearing Monday. "The government did not even ask him questions [about the identity of his source.] It's politically unavailable is what it is."

MacMahon said the government had made a series of decisions to blinder their investigation of Risen and those unexplored possibilities are fair game for the defense. "Why didn't they subpoena Mr. Risen's e-mails? Why didn't they subpoena Mr. Risen's phone calls?" the defense lawyer asked, calling it "really unfair and unconstitutional" to preclude the defense from bringing up such issues.

Prosecutor Eric Olshan said Risen's testimony should be off limits because the government "would be unable to cross-examine him effectively." Olshan said there was no issue about an accused's right to confront witnesses because neither side could examine Risen about the central issues in the case since he's unwilling to discuss them.

However, Brinkema said the situation was not entirely akin to most in which a witness refuses to testify.

"This is a little bit different,....This is not a person claiming the Fifth Amendment [right not to incriminate one's self.] Part of the issue is a policy decision," she said, noting Attorney General Eric Holder's decision to bar prosecutors from asking Risen directly about his confidential sources, or even where or when he met them or obtained certain information.

The judge noted that a federal appeals court agreed with the government that it could seek to force Risen to testify, but now Holder is electing not to.

Brinkema said Sterling's lawyers should be permitted, at a minimum, to tell jurors that Risen said at last week's hearing that he had multiple sources for the chapter at issue from his book. "He did say some things in his testimony that were not irrelevant to this case," the judge said.

The judge said she didn't want either side arguing in opening statements about Risen's absence from the trial. She deferred until to nearer the end of the trial the question of what lawyers can say about that in closing statements and whether jurors should be formally instructed not to draw any inference against either side from the fact Risen won't be called.

While Risen is off the hook in terms of testifying at the trial, he may still get roughed up a bit in the courtroom. A prosecutor asked Brinkema to drop a reference she planned to make to jurors about Risen being "a Pulitzer Prize-winning New York Times journalist."

"There are a lot of inaccuracies in this chapter," prosecutor James Trump said. "So, we are not going to be applauding Mr. Risen's research."

Trump said earlier in the hearing, as other prosecutors have previously, that Risen's contention the program was botched by the CIA is false. "It wasn't flawed," Trump said.

The judge was vague about whether she would drop the reference to the prestigious journalism award, but did say she thought it important jurors know that Risen was prominent and had been interviewed about the case by outlets like CBS's "60 Minutes."

Risen and one of his attorneys did not respond to e-mails seeking comment for this post.