Power Wars by Charlie Savage

Author:Charlie Savage
Language: eng
Format: epub
Publisher: Little, Brown and Company
Published: 2015-11-02T16:00:00+00:00

21. “A Price to Be Paid”

Holder had already started to pull back on the leak crackdown with his new investigation guidelines eighteen months before Petraeus got the good deal. And on May 14, 2014, when Holder had convened a group of journalists to talk about press-freedom issues, he hinted that he would not permit Risen to be jailed for refusing to discuss his sources in the Sterling trial.

“As long as I’m attorney general, no reporter who is doing his job is going to go to jail,” Holder said.133

But on January 5, 2015, as prosecutors prepared for the Sterling trial, they called Risen to the witness stand for a very unusual court hearing to explore what he was prepared to say in front of a jury if forced to testify. Risen declared again that he would not reveal his sources or offer any other help to prosecutors.

“I’m not willing to provide information in any way that will prove or disprove a mosaic the government is trying to make,” Risen said.

Holder had tied the prosecutors’ hands, and they did not press Risen, avoiding setting up any contempt citation. The following week, they filed a motion before Judge Brinkema saying they would not call him as a witness at Sterling’s trial.

It was a complicated end to Holder’s legacy in presiding over the greatest leak crackdown in American history. He had approved reissuing the subpoena to Risen, and he had approved battling to the Supreme Court to establish that the First Amendment does not protect the confidentiality of reporter-source relationships. But he also issued restrictive new leak investigation rules and, in the end, saved Risen from prison.

Risen’s attorney, Kurtzberg, celebrated the outcome for his client. But the result also made everything that had come before look worse. The Justice Department had harassed Risen for years, caused his book publisher to run up costly legal bills, and made it harder for him to do his job as an investigative reporter because everyone knew he was under scrutiny. The department had used his legal challenge to the subpoena to establish a definitive court precedent that the First Amendment offers no protection to journalists from being forced to testify against their sources. Then it dropped the matter.

“The significance of this goes beyond Jim Risen. It affects journalists everywhere. Journalists need to be able to uphold that confidentiality in order to do their jobs,” Kurtzberg said, adding, “I worry about future administrations. Now there’s bad precedent, and not every executive branch in the future will exercise their discretion the way this one did. It didn’t have to go this way.”134

Indeed, any sense of celebration for investigative journalism would prove to be short-lived. Sterling’s trial proceeded without Risen’s testimony, and the jury convicted him.

Justice Department prosecutors asked for a “severe” sentence and endorsed a sentencing guidelines range of nineteen to twenty-four years.135 Defense attorneys asked for leniency, citing Petraeus’s treatment.136 On May 11, 2015, Brinkema sentenced Sterling to three and a half years in prison. She said the sentencing

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