Will Eric Holder Back Off? 

The attorney general doesn’t really want New York Times reporter James Risen to go to jail. 

James Risen has steadfastly refused to testify in the government’s case against Jeffrey Sterling, a former CIA officer who is being prosecuted for leaking classified information.

Photo by Marvi Lacar/Getty Images for Focus

The Supreme Court turned down the appeal of James Risen today, setting up a showdown over press freedom between the government and a respected New York Times reporter and author. It’s a showdown that the Obama administration previously charged toward—but may no longer want. Will Attorney General Eric Holder figure out a way to head it off? Risen could go to prison, but it’s Holder who’s really in the hot seat.

Risen has steadfastly refused to testify in the government’s case against Jeffrey Sterling, a former CIA officer who is being prosecuted for leaking classified information. The Department of Justice says that Sterling is the source for a chapter in Risen’s 2006 book, State of War, about an error-riddled scheme by the CIA to trick Iranian scientists. In court, prosecutors argued that the jury must hear Risen identify Sterling. Risen says he’ll go to jail before he’ll give up his source.

When the U.S. Court of Appeals for the Fourth Circuit heard this case last summer, it sided 2–1 with prosecutors. The 4th Circuit said Risen’s testimony was crucial to the government’s prospects for convicting Sterling. And most significantly, the court ruled, “there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings.”

Now that the Supreme Court has bowed out, that ruling stands. So if Holder follows through on the power he has to order Risen to go testify, Risen would be held in contempt for refusing, and he’ll be on his way to jail.

Except somehow, maybe none of that will happen. Last week, in a meeting with a group of journalists, Holder was asked about Risen. He said, for the record, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”

The Justice Department said Holder wasn’t talking about any individual case. Sure, that’s what they have to say. But from the point of view of most of the press, Risen was surely doing his job. His reporting about the botched CIA operation embarrassed the agency, but the government hasn’t shown that it put anyone in danger.

Holder has been trying for almost a year to back out of the confrontation he had instigated with the press over leak investigations. He got pummeled over the Justice Department’s broad grab of AP phone records in one leak investigation, and the claim that Fox reporter James Rosen could be a criminal in another. In July,  Holder announced new guidelines that make it harder for Justice Department lawyers to vacuum up reporters’ records, as they did in the AP case. And the administration started saying it supports a bill that would shield reporters, in some cases, from having to reveal information about their sources and testify against them.

The Obama administration has prosecuted more leak cases than any other presidency—eight, compared with three for all the other administrations put together. That’s not a record Holder or the president lately appear to be proud of. The reason Holder was meeting with journalists last week is that he’s trying to show he’s sensitive to their concerns about being made to testify or hand over their records.

This is a switch. Earlier in Obama’s presidency—when they were writing the briefs in Risen’s case that got them their way in the 4th Circuit—Holder and the president seemed to view leakers as a low form of life bent on irresponsibly exposing the government’s secrets and screwing up its efforts to combat terrorism. There’s support for that view: Read Eric Posner in Slate, for example. When we debated this point last year, Eric said the government was merely treating Risen like any other witness of a crime. “It is not enough for journalists to enjoy de facto immunity for their complicity in law-breaking,” he wrote of reporters’ expectations. “They must also be given a Ring of Gyges that allows them to aid the law-breaking of others while cloaked in invisibility.”

Well, yes, the Ring of Gyges sounds pretty good to me. Reporters will have a much harder time ferreting sensitive and of course classified information out of sources if they can’t make a credible promise of confidentiality, because everyone knows the government has become all too willing to snoop into their phone and email records, or even make them rat on a source in open court. And usually, the public is better off with more information than less. That includes information the government would like to keep quiet. It does come down to this: Would you rather have the CIA and the National Security Agency, with all their incentives for secrecy, control the information flow? Or do you want to allow room for some unauthorized leaking along the way? Yes, this leaking sometimes is law breaking. But it’s also acted as a kind of unapproved but necessary safety valve, preventing overweening government power and abuse, at least since Daniel Ellsberg leaked the Pentagon Papers.

What we need is a balancing test. And happily, exactly such a test exists in the latest media shield bill to be considered by Congress. As I wrote about that bill in the fall, “The government will still win if it can show that the information it seeks from a journalist would help it mitigate an act of terrorism or other harm to national security, or that ‘national security interests’ outweigh the ‘public interest,’ for newsgathering, of allowing a journalist to keep his or her promise of confidentiality.” That test should get Risen out of his predicament. The government would have to prove that testimony like his would prevent a future act of terrorism or national security interest. The leak in his book is more than 8 years old and long past its expiration date in terms of this kind of relevance.

But Congress hasn’t passed that bill, and the Supreme Court hasn’t created a “reporter’s privilege” either. Most states have them; federal law does not. As Michael Kinsley wrote recently, “The First Amendment protects the right to speak. The right not to speak (eg, to protect a source) is more problematic.” Kinsley was defending his much-maligned review of No Place to Hide, Glenn Greenwald’s new book about the amazing document dump of NSA secrets by former contractor Edward Snowden. In his review, Kinsley said that in a democracy, “the private companies that run newspapers and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences.” This is the government’s call, Kinsley wrote, acknowledging that the government will be “overprotective of its secrets,” but saying “someone gets to decide, and that someone cannot be Glenn Greenwald.”

I disagree! Sometimes, journalists with access to valuable leaks are better deciders, from the point of view of a healthy democracy, than the NSA or CIA minders. We’re living in an era of far too little government transparency. A reporter’s privilege is one (rather small) antidote. That’s what the proposed media shield bill recognizes.

Congress should get its act together and turn that bill into law. And in the meantime, Eric Holder should find an off-ramp from his game of chicken with James Risen. The government already has phone and email records showing Risen and Sterling communicating, during the period Risen was reporting the story that all the fuss is about. If it’s really still worth prosecuting Jeffrey Sterling, the Justice Department should use the records it already took, and leave the journalist out of it.