ALEXANDRIA, Va. — The government’s case against an ex-CIA officer charged with leaking classified documents to a reporter may not make it to trial because of potential issues with a witness, a federal prosecutor said Friday.
Jeffrey Sterling of O’Fallon, Mo., who worked for the CIA from 1993 to 2002, is accused of leaking secrets about Iran to New York Times reporter James Risen. A 2006 book by Risen, “State of War,” revealed details about the CIA’s covert spy war with Iran.
But many details of the government’s case remain secret and classified. While it is clear from details in the indictment, for instance, that Risen is the alleged recipient of Sterling’s disclosures, the indictment refers to Risen only as “Author A.” Iran is referred to only as “Country A.”
At a pretrial hearing Friday in U.S. District Court, prosecutor William Welch told the judge that “potential witness issues” will determine “whether the case goes to trial or not.” He did not elaborate.
Neither the judge nor Welch divulged the witness who posed a problem, talking around the issue in open court because the issue has apparently been addressed to some extent in proceedings that remain under seal. But it seems clear that testimony from Risen, who has not cooperated with the investigation, is key to the government’s case.
U.S. District Judge Leonie Brinkema had quashed a pre-indictment subpoena demanding Risen’s testimony. And the Justice Department has stringent internal rules for seeking subpoenas from journalists, who enjoy some protection under the First Amendment
Peter Carr, a spokesman for the U.S. Attorney for the Eastern District of Virginia, said Welch was simply addressing the question of whether the government should be required to disclose details of its case and was simply saying that it is premature to do so at this point because the case may never make it to trial.
It could be that if the government successfully manages its witness issues that it will have such a strong case that Sterling might be forced to accept a plea bargain.
On the other hand, it could be that the government’s case would essentially fall apart if it can’t find a way to get Risen’s testimony.
Sterling’s lawyer, Edward MacMahon, seemed to discount any possibility of a plea bargain when he said during Friday’s hearing that “we are going to have a public trial.” MacMahon said the fact that so much of the case remains classified is hampering his ability to conduct an aggressive defense and unsuccessfully urged Brinkema to require the government to make additional details of its case public.
The defense also argued unsuccessfully that most of the government’s indictment against Sterling should be tossed out. But Brinkema did say that she has doubts about some of the specific counts brought by the government in the indictment, including one accusing Sterling of mail fraud because Risen’s book was shipped to retail stores through the Postal Service.
Sterling, who is black, has a long, contentious history with the CIA. He filed a racial discrimination complaint with the agency’s Equal Opportunity office in 2000 and followed that up with several federal lawsuits.