“There is no ‘reporter’s privilege’ that shields the identity of confidential sources in good-faith criminal proceedings,” prosecutors reiterated in a new pre-trial brief in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to author and New York Times reporter James Risen. Consequently, they said, Mr. Risen should not be permitted to invoke such a privilege to shield his source.
“Risen and his amici simply do not accept that Branzburg [the 1972 Supreme Court case that appeared to preclude a reporter's privilege in criminal cases] is the law,” prosecutors told the Fourth Circuit Appeals Court in their February 28 reply brief. “Instead, they largely ignore the majority opinion in that case and rely on other sources to construct a constitutional or common law privilege. Their arguments are not persuasive and should be rejected.”
“Contrary to Risen’s claim, the ‘newsworthiness’ of the information has no bearing on whether he should be required to disclose his source,” prosecutors wrote. “The ‘newsworthiness’ of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime.” (Risen’s brief in support of upholding a reporter’s privilege is here; an amicus brief filed by news media organizations is here.)
In a February 14 defense pleading that was redacted and unsealed this week, the Sterling defense team wrote that “Mr. Sterling takes no position on whether a ‘reporter’s privilege’ exists and, if so, whether Mr. Risen would have been entitled to invoke the privilege at trial.”
But the defense added that the urgency of the prosecution’s demand for Mr. Risen’s testimony “serves to highlight the evidentiary gaps in its case against Mr. Sterling. Indeed, the Government concedes that without Mr. Risen’s testimony, it cannot even establish venue [i.e. where the alleged crime took place].”
“The Government proffers that Mr. Risen is ‘the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator.’ This statement merely summarizes the Government’s aspirations as to what Mr. Risen might say. The Court must be careful to avoid believing that there is any basis in the record for this or the many other statements or claims the Government attributes to Mr. Risen and testimony that has never been provided.”
In short, the defense response said, “while Mr. Sterling takes no position on the privilege or First Amendment issues posed by this case, the record is clear that the Government is speculating about Mr. Risen’s anticipated testimony in a vain attempt to fill a gaping evidentiary void that has existed throughout its investigation and attempted prosecution of its case against Mr. Sterling.”
Both parties also disputed the other issues on appeal, including whether two government witnesses were properly struck by the trial court, and whether the identities of two covert witnesses should be revealed to the defense and the jury at trial, as the lower court ordered.
Oral argument before the Fourth Circuit Court of Appeals is tentatively scheduled for mid-May.