In Plan for Risen Subpoena, Government Raises Sixth Amendment Interests of Jeffrey Sterling

james-risenThe government has now submitted its explanation for the limited information it will seek from James Risen in the Jeffrey Sterling trial and pre-trial hearings.

It will ask him to confirm that:

  • He has  confidentiality agreement with his source or sources on the Merlin story (though they will not ask who those sources are)
  • He authored the Merlin chapter of his book State of War, but also one article in which he explicitly and another the government claims he relied on Sterling as a source
  • He worked with Sterling for one of those earlier stories in a non-confidential relationship

The government endorses holding a pre-trial hearing to find out the scope to which Risen is willing to testify.

The last line of the filing, however, suggests ExposeFacts may have correctly predicted their plan. The government raises the possibility Risen will refuse to answer Sterling’s questions.

To the extent Mr. Risen may refuse to answer certain questions posed by defense counsel (who, of course, are not bound by the limitations placed on the prosecution by the Attorney General’s authorization), the [pre-trial hearing] will allow the Court to address any resulting Sixth Amendment issues.

That is, the government envisions the possibility that their questions will introduce enough evidence to permit Sterling to ask for further answers, infringing on Risen’s source relationship with other sources. This would then put Risen’s alleged source in the position of demanding his testimony in an effort to stay out of prison.

Update: ExposeFacts reports from the court room that Judge Brinkema has called a January 5 hearing to sort out precisely how Risen will be asked to testify. His lawyer said the government will probably have to subpoena to get that testimony.

About Marcy Wheeler

Investigative journalist Marcy Wheeler writes the "Right to Know" column for ExposeFacts. She is best known for providing in-depth analysis of legal documents related to "war on terrorism" programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon and the Progressive. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog journalism.