Leak Prosecutors Criticize Sterling Subpoena to Senate

Government attorneys said last week that a proposal by former CIA officer Jeffrey Sterling to subpoena former staff members from the Senate Intelligence Committee to show that they, not he, leaked classified information was “frivolous” and should be denied.

Prosecutors also suggested that the Sterling defense motion actually strengthened their own argument that New York Times reporter James Risen, to whom Sterling allegedly provided classified information, should be compelled to testify at Sterling’s trial.

“The defense plans to point fingers at other possible ‘suspects’ and ask the jury to speculate that someone other than Sterling was Risen’s source,” prosecutors said in a July 22 response (pdf) to the defense motion for a subpoena to the U.S. Senate.  “And while the defendant certainly has a right to develop and put forth his defense as he sees fit, the only reason he can proceed down this path is because he believes that the government will not be able to compel Risen to identify his source or even testify as to who was not a source.”

“In other words,” prosecutors said, “the First Amendment interests advocated by Risen have become both a sword and shield for the defendant, and he has used the current impasse over Risen’s testimony to accuse falsely other individuals of serious crimes and ask this court to enforce speculative and largely frivolous requests to search for information in support of that defense.  This should not be countenanced,” they argued.

Prosecutors said that the Senate Intelligence Committee has undertaken a search for documents responsive to Mr. Sterling’s request, even in the absence of a subpoena.  They also said that the Committee staff members named by Mr. Sterling denied having provided any information to Mr. Risen.

A transcript of the July 7 court hearing on Mr. Risen’s motion to quash the prosecution’s subpoena to compel him to testify at trial is now available here (pdf).

William M. Welch II, the lead prosecutor in the Sterling case and in the recently concluded prosecution of Thomas Drake, was profiled by Shane Harris in “Obama Administration’s Point Man to Stop Leaks,” Washingtonian Capital Comment blog, July 20.