Prosecutors in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to the press, asked a court (pdf) this week to provide 50 blank subpoenas requiring testimony at a September 12 hearing in the case. The intended recipients were not identified.
“50 subpoenas seems like a hell of a lot,” said an attorney who has been an observer of the case. “I know who some of the witnesses likely could be, but it doesn’t amount to 50! Of course, [the subpoenas] could also be used for documents.”
Last week prosecutors also filed a mysterious motion (pdf) to depose an unidentified prospective witness. After the sealed motion was filed on May 12, the court issued an order (pdf) affirming that it was “sufficiently sensitive that it should not be part of the public record.” However, Judge Leonie M. Brinkema added that “there is no reason why defendant or defense counsel should be prevented from viewing [it].”
Yesterday, the government abruptly withdrew (pdf) the motion. No explanation was offered on the record.
The fact that the judge used the term “sensitive” to describe the motion and that at the same time she deemed it appropriate to share with the defendant and his counsel suggests that it was not classified and that its sensitivity was attributable to some other factor. But what?
One immediately thinks of the possibility of a deposition directed at the press, and specifically at New York Times reporter James Risen, with whom Mr. Sterling is alleged to have had a confidential source relationship.
But “I doubt it is a subpoena for the media,” said the observer. “Why would the government have any more success with that for trial than it did pre-trial?” An earlier subpoena to Mr. Risen was quashed last year by Judge Brinkema, as reported in Politico.
The prospective witness “could also be someone who they anticipate will be unavailable in September (perhaps overseas) or is seriously ill and perhaps is not expected to be around for the trial,” the observer said.
At an April 8 hearing in the case, prosecutor William M. Welch alluded to “potential witness issues” that could make it impossible to proceed with the case, the Associated Press reported. No details of such issues were provided.
Update: Reporter James Risen was in fact subpoenaed on May 23. See this government motion (pdf) to compel his testimony.