Monday, June 2, 2014
The Supreme Court has denied cert in New York Times reporter James Risen's appeal in a case brought by the Justice Department. Mr. Risen had sought the Court's review of a Fourth Circuit ruling that ordered him to comply with a subpoena requiring him to testify concerning Jeffrey Sterling, a former C.I.A. operative and information Mr. Sterling had disclosed to him, that Mr. Risen had published in New York Times articles and in his book State of War (2006).
Said the Fourth Circuit in part:
Like the Branzburg reporters, Risen has "direct information . . . concerning the commission of serious crimes." ...Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury -- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead. The subpoena for Risen's testimony was not issued in bad faith or for the purposes of harassment. ...Risen is not being "called upon to give information bearing only a remote  and tenuous relationship to the subject of the investigation," and there is no "reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement." Nor is the government attempting to "annex" Risen as its "investigative arm." (internal quotation marks omitted). Rather, the government seeks to compel evidence that Risen alone possesses -- evidence that goes to the heart of the prosecution.
The controlling majority opinion in Branzburg and our decision in Shain preclude Risen's claim to a First Amendment reporter's privilege that would permit him to resist the legitimate, good faith subpoena issued to him. The only constitutional, testimonial privilege that Risen was entitled to invoke was the Fifth Amendment privilege against self-incrimination, but he has been granted immunity from prosecution for his potential exposure to criminal liability. Accordingly, we reverse the district court's decision granting Risen a qualified First Amendment reporter's privilege that would shield him from being compelled to testify in these criminal proceedings.
The Fourth Circuit also rejected Mr. Risen's common law reporter's privilege claim. Rehearing en banc, denied by United States v. Sterling, 732 F.3d 292 (4th Circ. 2013).
Mr. Risen seems ready to refuse to comply with the subpoena, although it's not entirely clear that the Justice Department will demand jail time. More coverage here from U. S. News & World Report.