The Department of Justice should take a cue from its own recommendations and drop its subpoena to reporter James Risen, his lawyers argued in a letter to Attorney General Eric Holder yesterday.
In the July 25 letter, attorney David N. Kelley called the Justice Department’s effort to make Risen testify in federal court “utterly inconsistent” with what Holder has presented as the department’s new policy on journalist subpoenas. Holder’s Report on Review of News Media Policies, promising stronger protections for journalists, came out just a week before the U.S. Court of Appeals in Richmond (4th Cir.) ruled that Risen must testify in the trial of Jeffrey Sterling, a former C.I.A. officer and alleged leaker.
New York Times reporter Risen has vowed to keep fighting the subpoena, saying he would rather go to jail than answer whether Sterling was the source of confidential information in his 2006 book “State of War” regarding a failed operation to disable Iran's nuclear program.
Holder’s report, written at President Obama’s direction, came amid a public outcry over the Justice Department’s secret prying into the phone records of Associated Press journalists and the e-mail account of Fox News reporter James Rosen.
In it, Holder states that the Justice Department from now on will avoid issuing subpoenas to reporters and for their materials except “as a last resort” in cases where “the information sought is essential to a successful investigation or prosecution.”
“We urge you to apply those principles to this case,” Kelley wrote in his letter. “In particular, we urge that the ‘last resort’ and ‘essentiality’ requirements of the DOJ’s new Guidelines cannot possibly be said to have been met in this case.”
At the Fourth Circuit, the Justice Department successfully argued that Risen’s testimony was necessary because no one else could give an eyewitness account of the alleged leak. Whatever the legal merits of this argument, Kelley said, the government should abandon it as a matter of policy.
“One thing is clear. Reporters are invariably the ‘only eyewitness’ to the ‘crime’ of speaking with them,” Kelley wrote. “If the DOJ takes this approach, the new Guidelines will be a quickly forgotten promise.”
Kelley also requested a meeting with Holder to make the case against pursuing Risen’s testimony.
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