Secrecy: Press Subpoenas

Brinkema Opinion Sparing Risen from Testifying that Sterling was his Source

By Jack Goldsmith
Thursday, August 4, 2011, 5:07 AM

Here is the July 29 opinion in which Judge Brinkema explains why NYT reporter James Risen will not have to testify, in the Jeffrey Sterling leak prosecution, about whether Sterling was Risen’s source for Chapter 9 of State of War and related matters.  (Charlie Savage and Josh Gerstein have stories on the opinion.)

The opinion is a win for journalists who publish classified information, for it recognizes and articulates a pretty robust “qualified reporter’s privilege” against disclosing sources.  The opinion may seem like good news for Sterling.  But it is not to the extent that a key part of Brinkema’s ruling – backed up by a review of the public evidence, and a government-favorable ruling on the admissibility of the hearsay testimony of another witness – is that the information the government seeks from Risen is available in court through alternative means.  The opinion is yet another setback for government leak investigations.  When considered in combination with the Drake leak prosecution dénouement, the Obama administration’s unusually aggressive attempts to punish and deter leakers of classified information seem to be having the opposite effect by demonstrating to potential leakers more clearly than ever before how difficult it is in fact to punish them.  For this reason, among others, it seems likely that the government will, through some mechanism, appeal this ruling.