Judge Leonie Brinkema's Ruling Quashing Subpoena of James Risen

8/12/2019 Judge Leonie Brinkema's Ruling Quashing Subpoena of James Risen

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IN THE UNITED STATES DISTRICT COURT FOR TH CLERK, U S . DISTRICT COU RT~ ~ A ~ L ~ E ~ X A ~ N ~ D ~ A ~ I A ~ V ~ l ~ R G ~ l ~ N / ~ A ~ _EASTERN DISTRICT OF VIRGINIAAlexandria DivisionUNITED STATES OF AMERICA,

v .

JEFFREY ALEXANDER STERLING,

Defendant.

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1:10cr485 (LMB)

MEMORANDUM OPINIONThe government has i ssued a subpoena tha t would require

journal i s t James Risen ( Risen ) to t e s t i fy a t the cr iminal t r i a lof Jeffrey Ster l ing ( Ster l ing ) , a former Centra l In te l l igenceAgency off icer charged with disclosing c lass i f i ed information toRisen. Before the cour t i s the Government's Motion in Limine toAdmit the Testimony of James Risen [Dkt. No. 105] and the Motionof James Risen to Quash Subpoena and/or for Protect ive Order[Dkt. No. 115) . For the reasons s ta ted below, the motions wil lbe denied in part and granted in part , and the subpoena wil l bequashed for Risen 's test imony about his repor t ing and source(s)except to the extent tha t Risen wil l be required to providetestimony that authent icates the accuracy of his journalism,subject to a protect ive order .

I . BackgroundA. Risen 's repor t ing

In January 2006, Risen published State of War: The SecretHistory of the CIA and the Bush Administration ( State of War ),


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a book about the CIA. Chapter 9 of State of War describesOperation Merlin, an al legedly fa i led attempt by the CIA to

have a former Russian sc ien t i s t provide flawed nuclear weaponblueprints to Iran. Ex. 2 to Risen's Mot. to Quash a t 193-218.Chapter 9 includes an account of how despite the formerscient i s t immediately spott ing the flaws in the plan, the CIAinstructed him to del iver the blueprints to the Iranian embassyin Vienna. Chapter 9 concludes tha t because the defects in theblueprints were eas i ly ident i f iable Operation Merlin was deeplyflawed. Much of Chapter 9 i s to ld from the perspect ive of a CIAcase off icer who was assigned to persuade the sc ien t i s t to goalong with the operation.B. Grand jury proceedings

A grand jury s i t t i ng in the Eastern Dis t r i c t of Virginiabegan invest igat ing the unauthorized disclosures about OperationMerlin sometime in March 2006. 1 Grand Jury Op. a t 9. n January28, 2008, the government issued i t s f i r s t grand jury subpoena toRisen, seeking testimony and documents about the ident i ty of thesource(s) for cnapter 9 and Risen 's communications with the

10n November 30, 2010, the Court issued a Memorandum Opinionregarding Risen's motion to quash the grand jury subpoena,1:08dm61 ( Grand Jury Opinion ). The Court adopts the facts ass ta ted in the Grand Jury Opinion, which summarized thegovernment's evidence, much of which came from a c lass i f iedgovernment declaration. The government has since redactedc lass i f ied information from the Grand Jury Opinion, and on June28, 2011, the Court unsealed the redacted version of the GrandJury Opinion. This Memorandum Opinion quotes only from theredacted version of the Grand Jury Opinion.2


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Risen moved to quash the subpoena arguing tha t informationabout his confident ia l sources was protected by the qual i f iedrepor ter s privi lege both under the Firs t Amendment and thecommon law Risen jus t i f ied invoking the repor ter s privi lege onthe basis of his conf ident ia l i ty agreement with his sources andon his belief that the government issued the subpoena to harasshim. Id. a t 14. e also argued that the government had notovercome the qual i f ied reporter s privi lege because t had notdemonstrated that t had a compelling in te res t in theinformation that the information was relevant and that theinformation was unavailable from alternative sources.

The government responded tha t the Fourth Circui t does notrecognize a repor ter s privi lege under those facts; however eveni f such a qualif ied pr ivi lege were recognized i t would not applyto th is case because Risen did not have a conf ident ia l i tyagreement with his source nor did the government issue thesubpoena to harass him. Final ly the government argued tha t theprivi lege did not apply because the government had a compellingin te res t to es tabl ish probable cause and the information soughtfrom Risen was not avai lable from a l te rna t ive sources.

In a classi f ied aff idavi t f i led in March 2008 in connectionwith the f i r s t grand jury subpoena the government summarized theevidence i t had developed indicat ing tha t Ster l ing had disclosed

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c lass i f ied information to Risen. 2That evidence showed tha t Sterl ing was hired as a CIA case

off icer in 1993. Grand Jury Opinion a t 2-3. After being to ldtha t he fa i led to meet performance targets , Ster l ing , who i sAfrican American, f i l ed a discr iminat ion complaint with the CIAon August 22, 2000, followed by a lawsuit tha t was dismissedaf te r the CIA invoked the State Secrets privi lege. His employmentwith the CIA ended on or about January 31, 2002. Id.

On March 2, 2002, Risen published a ew York Times ar t ic leabout Ste r l ing s discr iminat ion lawsuit against the CIA. Thear t ic le ident i f ies Ster l ing by name, quotes him extensively, andrepor ts that Sterl ing was assigned to t ry to recrui t Iranians asspies . Id. a t 4. This ar t ic le supported the government'sconclusion tha t Sterl ing began communicating with Risen duringthe l a s t stages of his employment with the CIA.

The government also described evidence tha t af te r Sterl ingwas f i red by the CIA, he attempted to draw a t tent ion to theIranian nuclear weapons projec t . On March 5, 2003, Ster l ing metwith two staffers for the Senate Select Committee on Intel l igenceto discuss the nuclear weapons project , as well as hisunsuccessful discr iminat ion lawsuit . One of the s ta f fe rs l a te rto ld the government in an interview tha t during the meeting

2Because the government has not f i led a s imi lar aff idavi t inconnection with the t r i a l subpoena, th i s sect ion summarizes theinformation in the 2008 a f f idavi t tha t the government has sinceunclassif ied.5


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the newspaper had decided not to publish the story.In approximately August 2003, Ster l ing moved from Virginia

to Missouri, where he stayed with f r iends. Phone reco ds for thetelephone in his fr iends ' home document 19 ca l l s betwejn the NewYork Times off ice in Washington D.C. and the fr iends ' rome. l i..._a t 6. The friends t e s t i f i ed before the grand jury thaf they didnot receive ca l l s from anyone a t the New York Times. hegovernment also has records of phone ca l l s between the New YorkTimes and Ster l ing ' s ce l l phone and work phone extensi n a t BlueCross/Blue Shield in Missouri, where he began working in August2004. Sterl ing had access to his fr iends ' computer; a l FBIsearch of the computer revealed 27 emails between Ster ing andRisen. Id. a t 6-7 . In addit ion, a search of Ster l ing s personalcomputer revealed a l e t t e r to \\Jim" tha t was created o March 19,2004, describing Ster l ing ' s discrimination complaint and hismeeting with Senate s ta f fe rs . The l e t t e r s ta tes tha t [f]orobvious reasons, I cannot t e l l you every detai l . Id. a t 7. Ofpar t icular signif icance was the testimony of a former overnmentinte l l igence off ic ia l with whom Risen consulted on his s tor ies .e to ld the grand jury tha t Risen had to ld him that Ster l ing was

his source for information about the I ranian nuclear wlaponsoperation. Id. a t 7-8. Another witness t e s t i f i ed bef re thegrand jury tha t Ster l ing to ld her about his plans to m e t with

Jim, who had writ ten an a r t i c l e about Ster l ing ' s dis rimination

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case and was then working on a book about the CIA andithat whenshe and Sterl ing saw State of War in a bookstore Ster 1 ingwithout f i r s t looking a t the book told her tha t Chapt r 9 was

Id. a t 7.bout work he had done a t the CIA.Chapter 9 describes in de ta i l , two key c l s s i f i e ~ meetings

about Operation Merlin. Few people attended the meeti gs andthe government determined tha t Sterl ing was the only p rson whowas present a t both leading to the conclusion tha t Sterl ingthe source for tha t par t of Chapter 9.

In i t s papers the government conceded tha t the above-described evidence would establ i sh probable cause to i die tSterl ing:

The evidence gathered to date clear ly establ ishes tha tthere i s a t l eas t probable cause to believe thatJeffrey Ster l ing i s responsible for the unauthori eddisclosure of c lass i f i ed information regarding th []Operation to James Risen and three federal judge havealso made a s imi la r finding by authorizing the se rchwarrants described above. The Government believe tha tthere i s also probable cause to suggest tha t Jeff eySterl ing i s fur ther responsible for the [] disclo uresdescribed above. However the Government furtherbelieves tha t th i s matter warrants addi t ionalinvest igat ion to insure a proper charging decisionbefore an indictment i s presented to the Grand Juty.

Id. a t 8.In a Memorandum Opinion issued on November 30 20 o the

Court explained i t s reasons for quashing the subpoena. Inessence the Court found tha t [ i ) f aevidence that he obtained information

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reporter presents somed d 1. i un e r a conf ent ia i ty

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agreement or that a goal of the subpoena i s to harass orintimidate the reporter , he may invoke a qual i f ied pri t i legeagainst having to t e s t i fy in a criminal proceeding. Grand JuryOp. a t 19. Concluding tha t Risen's confident ia l i ty agr lement withhis source(s) established tha t he could invoke a quali iedprivi lege, the court applied the Fourth Circui t ' s thre -par tbalancing tes t , which requires the court to consider 1) whetherthe information i s relevant , 2) whether the i n f o r m t i ~ n can beobtained by al ternat ive means, and 3) whether there i acompelling in te res t in the information. Id. a t 17, c i t ngLaRouche v. National Broadcasting Co., 780 F.2d 1134 th Cir.1986) .

Applying the LaRouche balancing t e s t to the four ategor iesof information sought, the court determined tha t the g vernmenthad not overcome the qual i f ied repor ter ' s privi lege, glven thestrong circumstant ia l evidence already before the grand jury,concluding tha t there i s more than enough evidence to establ ishprobable cause to indic t Ster l ing and the government h sessent ia l ly admitted tha t fac t . Id. a t 34. The Court indicatedtha t it might be l ess l ikely to quash a t r i a l subpoena becausea t tha t stage the government must prove gui l t beyond a reasonabledoubt. Id. a t 35.C. Ste r l ing ' s indictment and the t r i a l subpoena

n December 22, 2010, a grand jury indic ted Sterl ing,

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charging him with ten counts: Unauthorized Disclosure of NationalDefense Information, in vio la t ion of 18 U.S.C. 793(d (Countsone, Four, and Six) ; unauthorized Disclosure of Nation l DefenseInformation, in violat ion of 18 u.s.c. 793(e) {Count Two,Five, and seven); Unlawful Retention of Class i f ied Information,in violat ion of lB u.s.c. 793(e) (Count Three); Mail , Fraud, inviolat ion of 18 U.S.C. 1341 (Count Eight); Unauthori edConveyance of Government Property, in violat ion of 18 .S.C. 641 (Count Nine); and Obstruction of Just ice, in viola ion of 18U.S.C. 1512(c) ( l} (Count Ten).

On May 23, 2011, the government served a subpoena on Risen,seeking his t r i a l testimony. The subpoena does notscope of testimony sought from Risen; however, in a

s p ~ i f y theMohion in

Limine f i led the same day, the government c la r i f i ed th scope,explaining that t planned to ask Risen to ident i fy St r l ing ashis source for Chapter 9, and to provide other informa ion aboutRisen s re la t ionship with Sterl ing, such as the time and place ofthe disclosures, as well as to authenticate Sta te of wlr OnJune 21, 2011, Risen moved to quash the subpoena. Ster l ing f i l edan opposit ion to the government s Motion in Limine, in which hesimply argues tha t the Court should defer ru l ing on t h ~ motion.

I I . DiscussionA Scope of the Firs t Amendment repor te r s pr iv i lege

iAs t did during the grand jury proceeding, the government

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argues that no repor ter s pr iv i lege exis ts under these 1 facts ,repeatedly placing the term Reporter 's Privilege in t o t a t i o nmarks, suggesting tha t the Fourth Circuit has never recognizedthe pr iv i lege . Mot. in Limine a t 6, Opp. to Mot. to Quash a t 16.

The government re l ies upon Branzburg v. Hayes, 401 U.S. 6651972) to support i t s argument tha t there i s no repor t r s

pr iv i lege here. Branzburg consolidated three cases i whichjournal i s t s sought to quash grand jury subpoenas for thei r notesand testimony about the i r repor t ing. The majority held thatthere was no repor ter s privi lege in these cases, f indf ng:

Nothing in the record indicates tha t these grand urieswere prob[ing] a t wil l and without re la t ion toexis t ing need. 11 DeGregory v. Attorney General of NewHampshire, 383 U.S. 825, 829 (1966). Nor did the grandjur ies attempt to invade protected Fi rs t Amendmentr ights by forcing wholesale disclosure of names abdorganizational af f i l i a t ions for a purpose tha t wat notgermane to the determination of whether crime has beencommitted, cf . NAACP v. Alabama, 357 U.S. 449 19 8);NAACP v. Button, 371 U.S. 415 (1963); Bates v. L i t l e.Rock, 361 U.S. 516 (1960), and the charac ter is t icsecrecy of grand jury proceedings i s a fur therprotect ion against the undue invasion of such r ights .See Fed. Rule Crim. Proc. 6 (e). The i n v e s t i g t i v ~power of the grand jury i s necessari ly broad i f i f spublic responsib i l i ty i s to be adequately discharged.Costello v. United States, 350 U.S., a t 364 .

. d.... a t 700As th i s Court explained in the Grand Jury Opinionf the

Fourth Circuit recognizes a qual i f ied Fi rs t Amendment }eporter spr iv i l ege tha t may be invoked when a subpoena e i t h e r s eks


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information about confidential sources or i s issued to harass orint imidate the journa l is t . 3

Just ice Powell, one of the f ivemajority, wrote a concurring opinion to emphasize the ' l imitednature of the majori ty 's rul ing:

I f a newsman bel ieves that the grand jury invest igationi s not being conducted in good fa i th he is not withoutremedy. Indeed, i f the newsman i s cal led upon to iveinformation bearing only a remote and tenuousrelat ionship to the subject of the invest igation, or i fhe has some other reason to believe tha t his test 'monyimplicates confidential source re la t ionships with u t alegi t imate need of law enforcement, he will have ccessto the court on a motion to quash and an appropri teprotective order may be entered. The asser ted cla 'm topr iv i lege should be judged on i t s facts by the s t ikingof a proper balance between freedom of the press ndthe obligat ion of a l l ci t izens to give re levanttestimony with respect to criminal conduct. The b lanceof these v i t a l const i tu t ional and soc ie ta l in tere t s ona case-by-case basis accords with the t r i ed and It radi t ional way of adjudicat ing such questions. Inshor t , the cour ts will be available to newsmen undercircumstances where legit imate Fi rs t Amendmentin te res ts require protection.Id. a t 709-10 (Powell, J . , concurring).

The Fourth Circui t f i r s t applied Just ice Powell 'sconcurrence to recognize a qual i f ied Fi rs t Amendment r por te r s

3Risen also argues tha t the Court should apply a federalcommon law repor ter s privi lege. Mot to Quash a t 25. I TheFourth Circuit has only mentioned a common law privi le e inUnited States v. Steelhammer, 539 F.2d 373 (4th Cir. 1 76), ac iv i l contempt proceeding, and has never applied the c on lawpr iv i lege in a criminal case. Although other c i rcu i t s haverecognized a strong repor te r s pr iv i lege under the fed ra l commonlaw, because the Fourth Circui t has not done so, the c urt willl imi t i t s analysis to the repor te r s priv i lege under t e Firs tAmendment

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privilege in United States v. Steelhammer 539 F.2d 373 (4th Cir .1976), in which a divided Fourth Circuit panel vacated a d is t r i c tcour t s contempt order issued to several journa l is ts w o refusedto t es t i fy a t a c iv i l contempt t r i a l . Si t t ing en bane theFourth Circui t reversed the panel s decision, adopting JudgeWinter s dissent from the panel decision, in which he utl inedthe contours of the repor te r s pr iv i lege:

In the instant case t i s conceded tha t the repor ersdid not acquire the information sought to be e l i c i t edfrom them on a confidential basis ; one of them(Steelhammer) so t es t i f ied in the d is t r i c t cour t . ystudy of the record fa i l s to turn up even a sc in t i l l aof evidence tha t the reporters were subpoenaed to lharass them or to embarrass thei r newsgatheringab i l i t i e s a t any future public meetings tha t the inersmight hold. I t therefore seems to me tha t , in thebalancing of in terests suggested by Mr. Just ice P wellin his concurring opinion in Branzburq v. Hayes, 08U.S. 665, 709 . (1972), the absence of a c la i ofconfident ial i ty and the lack of evidence ofvindictiveness t ip the scale to the conclusion th t thedis t r ic t court was correct in requir ing the repor ersto tes t i fy . These absences convert the ma jori ty sconclusion in to a broad holding that journa l is ts fa l ledas witnesses in c iv i l cases have a priv i lege to refuseto t es t i fy about a l l events they have observed in l the i rprofessional capaci ty i f other witnesses to the sameevents are avai lable , despi te the avowal tha t theholding i s l imited to the facts of the case.

Id . a t 376 (Winter, J . , dissenting) , the co r t en bane561 F.2d 539, 540 (4th Cir. 1977).

In LaRouche v . National Broadcasting Co., 780 F . 2 1134 (4thCir. 1986), the Fourth Circui t reaffirmed i t s recognit on of aqual i f ied repor ter s priv i lege and established the bal ncingt es t for deciding whether tha t pr iv i lege can be enforcl d. That

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regis tered lobbyist , and l a t e r published port ions of thoseinterviews in thei r news stor ies . After the senator w s indictedin a bribery scandal, the government subpoenaed the re or ters tot es t i fy a t the criminal t r i a l , and the reporters moved to quashthe subpoenas. The d is t r i c t court denied the motions, and theFourth Circui t affirmed, finding tha t

the incidental burden on the freedom of the press inthe circumstances of th i s case does not require t einvalidation of the subpoenas issued to the repor ers,and absent evidence of governmental harassment or badfai th , the reporters have no privi lege dif ferent romthat of any other c i t i zen not to t e s t i fy aboutknowledge re levant to a criminal prosecution.Id. a t 852. Relying on th is passage, the government a gues tha tthe LaRouche t es t applies to subpoenas in criminal cases only i f

Ithe journal i s t has demonstrated tha t the subpoena was issued inbad fai th. Mot in Limine a t 12. The government'sin terpre ta t ion of In re Shain is incorrect . As the Fo r thCircuit made clear, the holding was l imited to the c i cumstancesof th i s case, which did not involve any confident ia l i yagreement between the reporters and the i r source(s) . Under thesefacts , the Fourth Circui t recognized tha t the absence ofconfident ial i ty or vindict iveness in the fac ts of th i s casefa ta l ly undermines the reporters claim to a Fi rs t me dmentprivi lege. Id. a t 853 (emphasis added). The governm nt alsot r i es to re ly on In re Shain for the proposi t ion that Ihen criminalIqual i f ied repor ter s priv i lege i s applied dif ferent ly

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government maintains tha t well-set t led Supreme Court precedentbars the applicat ion of the qual i f ied repor te r s privi ,ege todissemination of fa l se information. Id. Risen, meanwhile, urgesthe Court to consider the newsworthiness of the leak l and thepublic in te res t in report ing on the progress nuclearprogram. Mot. to Quash a t 41. This l ine of argument ould havethe Court serve as edi tor- in-chief , uni la te ra l ly dete iningwhether report ing i s suf f ic ien t ly accurate or newswort y as to bedeserving of Firs t Amendment protect ion. Neither the ourthCircuit nor any other court has ever recognized c tors aspert inent to the repor te r s privi lege, and th i s Court declines tobe the f i r s t to do so.

In sum Fl.r s t AmenL-enthe Fourth Circui t s qual i f ied umrepor ter s pr ivi lege caselaw has two steps. Fi rs t the Court mustdetermine whether the subpoena seeks confident ia l t inginformation or was i ssued to harass the reporter . a f indingof ei ther , the Court applies the three-par t LaRouche s t .B. Whether the a l i f i ed re or t e r s to Risen

The qual i f ied repor te r s privi lege applies to subpoenabecause t seeks confident ia l source information. 5

defamation act ion i s not required to plead actual mali e.5As he did in the grand jury proceedings, Risen ~ g u e s thatthe government issued the subpoenas to harass him. Risen baseshis harassment claim on his record of writ ing s tor ies ~ h texposed the government's national secur i ty and inte l l igencepract ices , including a r t i c l e s tha t revealed the government'sdomestic warrant less wiretapping program, and the cr i t ic i sm that

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government does not dispute that Risen had a confident ia l i tyagreement with the source(s) of information for Chapte 9. SeeGrand Jury Opinion a t 20. In an aff idavi t f i l ed with is Motionto Quash the t r i a l subpoena, Risen avers tha t he recei ed theinformation from conf ident ia l source(s):

I could not have wri t ten Chapter 9 of State of Wa (andmany i f not a l l of the above-referenced ar t ic les andbooks) without the use of confidential source(s) . ysource(s) for Chapter 9 provided me with informationwith the understanding that I would not reveal th f i rident i ty/ ies . In circumstances in which I promisconfident ial i ty to a source, I cannot break tha tpromiseAny testimony I were to provide to the Government wouldcompromise to a s igni f icant degree my abi l i ty tocontinue repor t ing as well as the abi l i ty of othejournal i s t s to do so. This is par t icular ly t rue n mycurrent l ine of work covering s tor ies re la t ing tonat ional secur i ty , in tel l igence, and ter ror ism. I f Iaided the Government in i t s ef for t to prosecute ~confidential source(s) for providing information lo meunder terms of confident ial i ty I would inevi tably becompromising my own abi l i ty to gather news in thelfuture. I also bel ieve that I would be impeding 11other reporters ab i l i t y to gather and report the newsin the future.

Risen Aff. ~ ~ 51-52.The government argues tha t even i f Risen had a

confident ial i ty agreement with his source(s) , t would not covermuch of the testimony sought by the subpoena, including the timehe received from members of the Bush administra t ion. fhegovernment argues tha t the t r i a l subpoena was not issurd y theBush administra t ion and therefore there i s no evidence ofharassment. I t i s unnecessary to decide whether the s poena wasissued, a t leas t in par t to harass or int imidate Rise given theclear evidence of confident ia l i ty which is a l l tha t i needed tot r igger the privi lege.

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and place of the al leged disclosure and testimony about Risen's2002 newspaper ar t ic le concerning Ste r l ing s c iv i l l w ~ u i tagainst the CIA. Mot. in Limine a t 17. Risen respond tha t h isconfident ial i ty agreement(s} extend beyond the name of thesource:

I understand that , i f the Government cannot gettestimony from m about the ident i ty of my conf id nt ia lsource(s), the Government may seek testimony from mabout the deta i ls of my conversations with myconf ident ia l source(s} (without actual ly asking m thename(s) of my source(s)) . I cannot provide th istestimony to the Government e i ther . The agreemen Ihave reached with my confidential source(s) for c apter9 of my book, State of War does not merely cover thename of the source{s). Rather, I understand myagreement(s) to require m not to reveal anyinformation tha t would enable someone to ident i fy myconfidential source(s)I have never heard of any confident ia l i ty agreementmade by a journa l is t tha t merely requires thejournal i s t not to name his or her source. Such anagreement would be of l i t t l e value to a source orlpotent ial source. I f a journa l is t were to withho'd asource 's name but provide enough information toauthor i t ies to ident i fy the source, the promise oconfident ial i ty would provide l i t t l e meaningfulprotection to a source or potent ia l source.

Risen Aff. ~ 54-55.The government's narrow view of the scope of Rise s

confident ial i ty agreement i s incorrect . Courts have 1 ng heldthat the repor ter s priv i lege i s not narrowly l imited oprotect ing the reporter from disclosing the names of c nf ident ia lsources, but also extends to information tha t could lead to thediscovery of a source 's ident i ty . see. e.g . , Miller vl

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c. Authentication of Risen's repor t ingThe government seeks to e l i c i t testimony that

the book offered in to evidence is in fact the book tha heauthored. Mot. in Limine a t 23 (emphasis in or igina l . Risenconcedes that he i s will ing to provide authent ica t ion testimony,subject to a protective order l imit ing the testimony tconfirmation:

(1) that he wrote a par t icular newspaper ar t ic le ci rchapter of a book; (2) tha t a par t icular newspapetar t ic le or book chapter that he wrote i s accurate} (3)tha t statements ref erred to in his newspaper ar t ic le orbook chapter as being made by an unnamed source w ~ r infact made to him by an unnamed source; and (4) t h ~ tstatements referred to in his newspaper a r t i c l e or bookchapter as being made by an ident i f ied source werr infac t made by tha t ident i f ied source.Mot. to Quash a t 45-46. Risen's agreement to authent icate hisnewspaper ar t ic les and book provides s ignif icant evidetce to thegovernment. Most importantly, Risen will t e s t i fy that_lstatementsreferred to in the March 2, 2002 newspaper a r t i c l e as being madeby Ster l ing were in fact made by Sterl ing. Risen, t h e ~ e f o r ewill t es t i fy before the jury tha t he interviewed Ster l ng forthat newspaper ar t ic le . Although th is i s not a direc t admissionthat Sterl ing was a source for Chapter 9, t provides i rec tevidence of Risen's contacts with Sterl ing.D. A l i ca t ion of the LaRouch to the oenafor Risen's testimon about his conf idensource Cs)

The remainder of the subpoena seeks Risen 's t e s t i ony about:

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icircumstantial evidence. s the standard jury ins tructions andcase law establ ish, circumstantial evidence i s no l es t probativethan di rec t evidence. Stamper v. Muncie, 944 F.2d 11p, 174 (4thCir. 1991). The government has not s ta ted whether t hasnontestimonial direc t evidence, such as email messageslorrecordings of telephone ca l l s in which Sterl ing disclosesc lass i f ied information to Risen; nor has t proffered in th isproceeding the circumstant ia l evidence t has developed.

The government also argues that t has exhaustedli tsattempts to obtain the information from Risen and thah i t isself-evident that , in a leak case such as th i s one, Riken is theonly source for the information that the Government selks . Gov.Response a t 22 and 22, n. 11. This argument c lear ly mt ss ta testhe evidence in the record, which as described in Sect i on I-C,infra , includes numerous telephone records, email messages,computer f i les , and testimony tha t strongly indicates hatSter l ing was Risen's source. Indeed, in i t s Motion in Limine,the government acknowledges tha t i f Risen does not t es ify, thegovernment will re ly on the numerous telephone ca l ls e tweenRisen and Ster l ing 's home in Herndon, Virginia in Feb ary andMarch 2003 - immediately before Mr. Risen made t kno to theCIA tha t he possessed information about Class i f ied Pro ram No. 1- in order to prove venue[.] Mot. in Limine a t 25, n. 14.

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In addit ion to the documentary evidence, the government hasthe testimony of the former in tel l igence off ic ia l with whom Risenconsulted on his s tor i es . The former in tel l igence off c ia lt es t i f ied before the grand jury tha t Risen to ld him th t Sterl ingwas his source for information about the c lass i f ied op rat ion.Such testimony a t t r i a l would provide exact ly what the governmentseeks to obtain from i t s subpoena: an admission tha t S er l ing wasRisen's source for the classi f ied information in Chapter 9.

The government br ie f ly argues that the former govtrnmentin te l l igence of f ic ia l s testimony would be inadmissiblr becauset is hearsay, although the government does not elaborate on i t s

reasons for th is conclusion. Response to Mot. to Quash a t 26.Contrary to the government's view of inadmissibil i ty , ~ ystatements by Risen to a th i rd par ty tha t S ter l ing waslhis sourcewould be admissible hearsay under Fed. R. Evid. 804(b) r3 as astatement against in te res t . A statement is admissible underth i s exception i f : 1) the speaker is unavailable; 2) thestatement is actual ly adverse to the speaker 's penal i r t e res t ;and 3) corroborating circumstances c lear ly indicate thetrustworthiness of the statement. United States v. smlth, 383Fed. Appx. 355, 356 (4th Cir. 2010) ( internal quotation marksomitted) .repor ter stestimony,

Risen would be unavailable i f the Court finds that thepr iv i lege prevents the government from e l i c l t ing hisor he refuses to t e s t i fy even i f the p r i v i l ~ g were

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denied and he was ordered to t es t i fy . Risen's statements areadverse to his penal in te res t because receiving classi iedinformation without proper authorizat ion is a federal elonyunder 18 u.s.c. 793(e); see U.S. Sentencing Guidelines Manual2M3 3 (providing a base offense level 29 for convict io s for the

Unauthorized Receipt of Classif ied Information. ) 6 lhecorroborating circumstances, including the emails and phonerecords discussed above, indicate the trustworthiness bf Risen'sstatement to that off ic ia l that Sterl ing was his sourci.Therefore, the former government of f i c i a l ' s testimony lboutRisen's comments would not be excluded as hearsay.

Nor would such testimony violate the Sixth Amendmrnt'sConfrontation Clause under Crawford v. Washington, 541 U.S. 36,59 (2004), which has l imited the use of hearsay in criminalt r i a l s . Whether hearsay i s admissible depends on whet,er i t ischaracterized as tes t imonial . The Court l e f t for a other dayany effor t to spe l l out a comprehensive def ini t ion of' t es t imonia l , ' id . a t 68, but t held tha t a t minimum the termcovers police interrogations and pr ior testimony a t a Jreliminaryhearing, before a grand jury, or a t a former t r i a l . T e Courtdescribed the core class of ' test imonial statements '

[1] ex parte in-court testimony or i t s functionalequivalent--that is , material such as aff idavi ts ,6The government c lear ly recognizes Risen 's potent 'a lexposure to criminal l i ab i l i t y and has offered to obta n an orderof immunity for him.

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583, 89 (7th Cir. 2008)). Whether a statement is test imonialfor confrontat ion Clause purposes, therefore , turns on thepurpose of the statement. In th i s case, Risen made th commentsin the course of his repor t ing. Given Risen's rigorouinvocation of the repor te r s privilege, t st ra ins ere ul i ty tof ind that a journa l is t would ever reasonably expect th t hiseffor ts to veri fy the veraci ty of a conf ident ia l sourc would beused in court against tha t source in a criminal t r i a l . Underthese facts , Risen's statements to the former governme t off ic ia lcannot be deemed test imonial , and therefore the Confro ta t ionClause does not bar admission of the former of f i c i a l s testimonya t t r i a l . 7

The government also claims that hearsay rules and thespousal pr iv i lege would prevent the admission of t e s t iJ ony fromthe witness who te s t i f ied before the grand jury tha t ~ r l i n gto ld her about his plans to meet with Jim, who had writ ten anIar t ic le about Ster l ing s discr iminat ion case and that Sterl ingcommented about Chapter 9 when they saw State of war ib the

Ibookstore, Resp. to Mot. to Quash a t 26. Of course, thesestatements by the defendant are a par ty admission undei Fed. R

7Neither Risen, the government, nor Ster l ing has argued tha tthe former government of f i c i a l can claim a privi lege, ~ n theformer off ic ia l has already t es t i f ied before the grand ljurywithout invoking a priv i lege . Although the repor te r s [privilegeprotects a journa l is t from tes t i fying about his s o u r c e ~ no courthas ever held tha t the priv i lege protects a source fromtes t i fying about the journa l i s t .

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Evidence 80l(d) and are not hearsay. Although the gov rnmentargues tha t the spousal pr iv i lege would prevent th is w tness fromtest i fying, nothing in the record indicates tha t Ster l ng and thewitness are married now or were married during the tim ofSter l ing s alleged statements. I f th is witness is entlymarried to Sterl ing, and i f she were to asser t the sa ltestimonial pr iv i lege , then her testimony will be unav i lable tothe government. See Trammel v. United States , 445 U.S 40, 53

1980) (only the witness-spouse can asser t the spousalprivilege) .

Had the government provided the Court with a summrry of i t st r i a l evidence, and tha t summary contained holes that rould onlybe f i l l ed with Risen s testimony, the court would have had abasis upon which to enforce the subpoena. The governrnjnt has notprovided such a summary, re lying instead on the mere at legat iontha t Risen provides the only direc t testimony about the source ofthe c lass i f ied information in Chapter 9. That al legat ion isinsuff ic ien t to es tabl ish tha t compelling evidence of sourcefor Chapter 9 i s unavailable from means other than Risln stestimony. The information provided to the Court duribg thegrand jury proceeding, par t icular ly the testimony of formergovernment in tel l igence off ic ia l , provides the exact sJmeinformation tha t the government is seeking in the subp ena:Risen s statement about the ident i ty of his source for Chapter 9.

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between c iv i l act ions and criminal cases. Accordingly, for acompelling in te res t to exis t , the information must be necessaryor, a t the very leas t , c r i t i c a l to the l i t iga t ion a t issue.

The government argues tha t the government 's burden ofestabl ishing Ste r l ing s gu i l t beyond a reasonable doubt creates acompelling in te res t in obtaining Risen's testimony. Mot inLimine a t 26. To be sure, in the Grand Jury Opinion, th i s Courts ta ted tha t the government 's in te res t in the enforcement of at r i a l subpoena might be more compelling than in the grand jurycontext, where the burden of proof i s probable cause, a muchlower evidentiary standard. Grand Jury Opinion a t 34-35. Thegovernment, however, in specifying the compelling in te res t , hasnot pleaded that Risen's testimony i s necessary or c r i t i c a l toproving Ste r l ing s gui l t beyond a reasonable doubt; instead, thas argued that Risen's testimony wil l s impl i fy the t r i a l andc lar i fy matters for the jury and allow for an eff ic ientpresentat ion of the Government's case. Mot. in Limine a t 5. Aneff ic ient and simpler t r i a l is neither necessary nor cr i t i ca l todemonstrating Ste r l ing s gu i l t beyond a reasonable doubt. I fmaking the t r i a l more e f f ic ien t or simpler were suff ic ien t tosa t is fy the LaRouche compelling in te res t factor , there wouldhardly be a qual i f ied reporter s pr iv i lege . Having fa i led toestabl ish a compelling in te res t in Risen's testimony, the

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government does not p rev a i l on the t h i rd element of the LaRouchet e s t .

Balancing the t h ree LaRouche f ac to r s , those aspec t s of thesubpoena address ing the i d e n t i t y of Ri se n s source(s) wil l bequashed because the government has fa i l ed to demonst ra te t h a t theequiva len t in format ion i s unava i lab le from o th e r sources and t h a tthere i s a compell ing i n t e r e s t in Ri se n s t es t imony.

I I I . ConclusionThe Fourth Ci rcu i t r ecogn izes a q u a l i f i ed r e p o r t e r s

p r iv i l eg e , which i s not l imi ted only to c i v i l ac t ions . When ar ep o r t e r invokes the p r iv i l eg e , the Court must balance ther e p o r t e r s need to p ro t ec t his o r her sources agains t thel eg i t ima te need of prosecu tor s o r c i v i l l i t i g a n t s fo r thej o u r n a l i s t s t es t imony to es t ab l i s h t h e i r case .

Rather than expla in ing why the government s need fo r Ri sen stest imony outweighs the q u a l i f i ed r e p o r t e r s p r i v i l eg e , thegovernment devotes most of i t s energy to arguing t h a t ther e p o r t e r s p r iv i l eg e does not ex i s t i n cr imina l proceedings t h a tare brought in good fa i th . Four th Ci rcu i t precedent does notsuppor t t h a t p o s i t i o n . Moreover, the government has notsummarized the ex tens ive evidence t h a t t a l ready has co l l ec t edthrough a l t e rn a t i v e means. Nor has the government e s t a b l i she dt h a t Risen s t es t imony i s necessa ry o r c r i t i c a l to provingS t e r l i n g s g u i l t beyond a reasonable doubt . cr imina l t r i a l

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subpoena i s not a free pass for the government to r i f l r through arepor ter s notebook. The government must es tabl ish th r t there isa compelling in te res t for the journa l i s t s testimony, Ind thatthere are no other means for obtaining the equivalent f tha ttestimony. Under the speci f ic facts of th i s case, as ~ i s u s s e dabove, the government has evidence equivalent to Risentstestimony. Accordingly, the Government s Motion in Li ine toAdmit the Testimony of James Risen [Dkt. No. 105) and he Motionof James Risen to Quash Subpoena and/or for Protect ive Order[Dkt. No. 115) will be granted in part and denied in p r t , andRisen will be required to provide testimony l imited to confirmingthe following topics: 1) tha t Risen wrote a par t icul rnewspaper ar t ic le or chapter of a booki 2) tha t a icularnewspaper ar t ic le or book chapter tha t Risen wrote is ccurate;

3) that statements referred to in Risen s newspaper a r t i c l e orbook chapter as being made by an unnamed source were in fact madeto Risen by an unnamed source; and 4) tha t statements referredto in Risen s newspaper a r t i c le or book chapter as being made byan ident i f ied source were in fact made by tha t ident i f ied source.

t J.Entered th i s _;J day of July, 2011.Alexandria, Virginia

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'eonie M Brink maUaitecl State District Judge

Documents

Judge Leonie Brinkema's Ruling Quashing Subpoena of James Risen