DOJ, Which Once Claimed James Risen's Testimony Was Necessary, Now Tries To Block Other Side From Using Him
from the funny-how-that-works dept
The James Risen saga is basically over, but ended in a bizarre way. As you hopefully recall, this case goes back many years, and involves the DOJ trying to convict Jeffrey Sterling, a former CIA official, of leaking info to Risen. However, Risen has made the compelling case that the DOJ’s desire to involve him was an attempt to punish him for earlier work he’d done exposing questionable practices by the intelligence community — and specifically to force Risen to give up a source, so that future whistleblowers can’t trust him. This backfired massively, as Risen fought this entirely, promising never to give up his source, even as the issue went up the Supreme Court (which refused to hear the case), but technically ended with a court saying Risen had to give up his source. Risen still insisted that he would not, and he’d go to jail if he had to. This put Attorney General Eric Holder in a bit of a bind, as he’d promised not to put reporters in jail. Thus, last month, Holder blinked, saying the DOJ would not force Risen to give up his source. However, he was still supposed to testify, just not on that.
Last week, Risen took the stand and basically said absolutely nothing, leading the DOJ on Monday to tell the court that it wanted to “exclude James Risen as an unavailable witness.” The filing is fairly amusing, as it admits that Risen is refusing to reveal anything:
Mr. Risen?s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he?s written). He will not. As a result, the government does not intend to call him as a witness at trial. Doing so would simply frustrate the truth-seeking function of the trial.
But as you read it, you realize that the key reason for the filing isn’t to admit defeat, but rather to block Sterling’s lawyers from using Risen’s refusal to testify (or the fact that, in previous filings, the DOJ had said, directly, that without Risen’s testimony, they couldn’t convict Sterling).
This is true irrespective of whether he is called by the government or the defense?he is unavailable to both parties. The law makes clear that testimony that is not subject to meaningful cross-examination regarding non-collateral matters is antithetical to the purpose of a trial and should be excluded.
And, specifically, please oh please, don’t let Sterling’s lawyers mention anything about all of this to the jury:
Moreover, since Mr. Risen is not available as a witness on the central issue in the case, the defendant should be prohibited from commenting on Mr. Risen?s failure to appear or suggesting that the government has failed to meet its burden because it did not call him as a witness.
In response, the judge refused the DOJ’s request to declare Risen “unavailable” for both sides, and everyone’s figuring out how to proceed, with Sterling’s lawyers saying that they want to use earlier Risen testimony about how he had multiple sources for his book.
Either way, the DOJ comes out of this looking terrible, and James Risen has made it clear that, if you’re a whistleblower, you certainly can trust him not to reveal who you are to the government…