ALEXANDRIA, Va. — Lawyers for a New York Times reporter argued Thursday that the First Amendment should shield him from having to testify about his sources when prosecutors put a former CIA officer on trial for allegedly leaking classified information about Iran.
Only when a journalist's testimony is absolutely critical to a government's case can prosecutors subpoena a reporter and require testimony about anonymous sources, said lawyer Joel Kurtzberg, who represents Pulitzer Prize-winning reporter James Risen.
"A reporter should be the last resort, if even at all, not the first resort" when the government puts on a criminal case, Kurtzberg told U.S. District Judge Leonie Brinkema.
Prosecutors have subpoenaed Risen to testify at the September trial of Jeffrey Sterling, a former CIA officer from O'Fallon, Mo. The government alleges that Sterling was a key source for a chapter in Risen's 2006 book State of War, which details a botched CIA effort during the Clinton administration, dubbed Operation Merlin, to thwart Iran's nuclear ambitions by secretly giving the Iranians intentionally flawed blueprints through a Russian intermediary.
Prosecutors on Thursday argued that Risen's First Amendment rights pale in comparison to the government's need to prosecute criminals and obtain evidence to which juries are rightfully entitled.
Last year, Brinkema quashed a similar subpoena issued to Risen when the case was in front of a grand jury. She ruled that the government simply didn't need Risen's testimony to obtain an indictment in light of other evidence possessed by the government, including phone records showing multiple calls between Risen and Sterling.
But Brinkema acknowledged that as the government's burden of proof becomes higher at trial, it may be entitled to Risen's testimony. On Thursday, though, she continued to question whether Risen's testimony was truly necessary, given the substantial circumstantial evidence already possessed by the government.
Prosecutor William Welch responded that juries are fickle and almost always prefer direct evidence — like that which would be provided by Risen himself — to circumstantial evidence. He cited Casey Anthony's acquittal Tuesday in Florida on charges of murdering her young daughter as an example of what can go wrong when prosecutors lack direct evidence.
Brinkema did not rule at Thursday's hearing and said she will issue a written opinion later.