James Risen is the New York Times reporter whose refusal to testify in the Jeffrey Sterling prosecution John Kiriakou treats as the controlling precedent on subpoenas to the press — and as the thing a determined administration would want to undo.[1]
His account of the sequence is that Risen simply outlasted the government: “they tried to compel Risen to testify in that case. Risen refused. He went to the Fourth Circuit Court of Appeals and lost there, went then to the Supreme Court and lost there, and still refused to testify. Finally the Justice Department backed off.”[1]
The lesson he thinks was drawn is not the one press-freedom advocates would take.[2]
“I think that the Trump Justice Department isn’t going to want the government to back off. I think they’re going to want to make an example of somebody in the press, and preferably make an example of someone who’s as highly respected as James Risen is.”
He raises it in 2017 in answer to Deputy Attorney General Rod Rosenstein’s assurance that the department was “after the leakers, not the journalists.” Kiriakou does not believe it, and points at the Attorney General rather than the deputy: “somebody should tell the attorney general that his deputy is saying that this is not going to be focused on the press, when the attorney general himself has said that it will be focused on the press.”[3]
The precedent that survived the outcome
Kiriakou’s earlier account of the same sequence, given three months before, differs in emphasis rather than in fact, and the emphasis is the point. He raises Risen in 2017 not against Donald Trump but against the administration before him, in answer to a question about Trump reportedly urging James Comey to jail reporters: “there was a very dangerous precedent that was set during the Obama administration.”[4]
The sequence he gives runs the same way — Risen refused to testify in the Jeffrey Sterling trial, the Eastern District of Virginia prosecution appealed to the Fourth Circuit, which held that he did have to testify, and the Supreme Court said the same — and so does the ending: “he didn’t testify in the end, and Attorney General Holder didn’t prosecute him for not testifying.” What Kiriakou refuses to treat as a victory is the ending. “But still, the precedent was set.”[5]
That is why he declines to make the issue a partisan one. “The problem here is a bigger one than Jim Risen not testifying, or than Donald Trump saying that we should jail reporters. The bigger issue is this incremental whittling away of our constitutional rights — our most important constitutional rights, including freedom of speech. This is something that we really have to put our foot down on, and we have to fight it at every step of the way.”[6]