As Josh Gerstein first reported, the government has just asked the judge in the Jeffrey Sterling trial, Leonie Brinkema, to declare James Risen unavailable as a witness. After having defended their own right to call Risen as a witness all the way to the Supreme Court, claiming all the way they need Risen to prove their case, they’re now saying Sterling should not be able to call him.
Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his sources 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. This is true irrespective of whether he is called by the government or the defense–he is unavailable to both parties.
The real issue, it seems, is the government’s worry that Sterling’s lawyers will ask Risen about those past claims.
[S]ince 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.
The government has even asked Brinkema to give jurors an instruction saying,
James Risen has refused to testify concerning his source or sources for Chapter Nine of his book State of War. He is therefore unavailable as a witness in this case. As a result, you should draw no inferences as to either the government or the defense based on Mr. Risen’s absence as a witness or any testimony he might have provided.
We’ll see whether Sterling’s lawyers want to engage in a game of chicken in order to present the lengths to which the government pursued Risen, in addition to their client, in this case.
Update: At a hearing today, the defense argued they should be able to raise the extent to which the government investigated Risen’s sources, and Judge Brinkema — raising the government’s own successful appeal of her decision limiting Risen’s testimony — agreed.
[D]efense lawyer Edward MacMahon said Risen wasn’t truly unavailable, but had essentially been excused from testifying as a result of a decision by the government.
“He’s not unavailable in a legal sense,” MacMahon declared at a court hearing Monday. “The government did not even ask him questions [about the identity of his source.] It’s politically unavailable is what it is.”
MacMahon said the government had made a series of decisions to blinder their investigation of Risen and those unexplored possibilities are fair game for the defense. “Why didn’t they subpoena Mr. Risen’s e-mails? Why didn’t they subpoena Mr. Risen’s phone calls?” the defense lawyer asked, calling it “really unfair and unconstitutional” to preclude the defense from bringing up such issues.
[snip]
Brinkema said the situation was not entirely akin to most in which a witness refuses to testify.
“This is a little bit different,….This is not a person claiming the Fifth Amendment [right not to incriminate one’s self.] Part of the issue is a policy decision,” she said, noting Attorney General Eric Holder’s decision to bar prosecutors from asking Risen directly about his confidential sources, or even where or when he met them or obtained certain information.
The judge noted that a federal appeals court agreed with the government that it could seek to force Risen to testify, but now Holder is electing not to.
Brinkema said Sterling’s lawyers should be permitted, at a minimum, to tell jurors that Risen said at last week’s hearing that he had multiple sources for the chapter at issue from his book. “He did say some things in his testimony that were not irrelevant to this case,” the judge said.
We’re not backing down in the face of Trump’s threats.
As Donald Trump is inaugurated a second time, independent media organizations are faced with urgent mandates: Tell the truth more loudly than ever before. Do that work even as our standard modes of distribution (such as social media platforms) are being manipulated and curtailed by forces of fascist repression and ruthless capitalism. Do that work even as journalism and journalists face targeted attacks, including from the government itself. And do that work in community, never forgetting that we’re not shouting into a faceless void – we’re reaching out to real people amid a life-threatening political climate.
Our task is formidable, and it requires us to ground ourselves in our principles, remind ourselves of our utility, dig in and commit.
As a dizzying number of corporate news organizations – either through need or greed – rush to implement new ways to further monetize their content, and others acquiesce to Trump’s wishes, now is a time for movement media-makers to double down on community-first models.
At Truthout, we are reaffirming our commitments on this front: We won’t run ads or have a paywall because we believe that everyone should have access to information, and that access should exist without barriers and free of distractions from craven corporate interests. We recognize the implications for democracy when information-seekers click a link only to find the article trapped behind a paywall or buried on a page with dozens of invasive ads. The laws of capitalism dictate an unending increase in monetization, and much of the media simply follows those laws. Truthout and many of our peers are dedicating ourselves to following other paths – a commitment which feels vital in a moment when corporations are evermore overtly embedded in government.
Over 80 percent of Truthout‘s funding comes from small individual donations from our community of readers, and the remaining 20 percent comes from a handful of social justice-oriented foundations. Over a third of our total budget is supported by recurring monthly donors, many of whom give because they want to help us keep Truthout barrier-free for everyone.
You can help by giving today during our fundraiser. We have until midnight tonight to add 132 new monthly donors. Whether you can make a small monthly donation or a larger gift, Truthout only works with your support.