William Welch’s Gimmick and the Harassment of James Risen

As Josh Gerstein reports, Leonie Brinkema has unsealed her November 2010 ruling quashing the government’s subpoena of James Risen to testify before the grand jury. Gerstain describes several interesting details revealed in the ruling–including that the government withheld information, including details surrounding the 2005 testimony of, apparently, a Senate staffer. Go check out those details.

There are a couple of things I wanted to add to Gerstein’s analysis, though.

First, when the subpoena was first announced, I suggested that it appeared that the government’s inclusion of ticky tack charges like mail fraud seemed like an effort to invent a reason to require Risen’s testimony.

It appears likely they planned to [subpoena Risen again] all along and crafted the charges against Sterling accordingly. For example, they claim they need Risen to testify, in part, to authenticate his book and the locale where alleged leaks took place.

Risen can directly identify Sterling as the individual who illegally transmitted to him national defense information concerning Classified Program No. 1 and Human Asset No. 1. Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. Additionally, as set forth below, Risen can establish venue for certain of the charged counts; can authenticate his book and lay the necessary foundation to admit the defendant’s statements in the book; and can identify the defendant as someone with whom he had a preexisting source relationship that pre-dated the charged disclosures. His testimony therefore will allow for an efficient presentation of the Government’s case.

Locale issues stem from mail fraud charges that appeared ticky tack charges up to this point. But the government is now arguing that that information–as distinct from whether Sterling served as a source for the information at issue–is critical to these ticky tack charges. Which, it seems they hope, would get them beyond any balancing test on whether Risen’s testimony is crucial for the evidence at question.

As it turns out, Brinkema’s opinion makes it clear that the biggest window she left the government to call Risen at trial was authentication.

Although the government might have a plausible argument that such authentication may be necessary at trial, it cannot argue that the government has a compelling interest in authenticating chapter 9 during grand jury proceedings.

But given that she has rejected the government’s venue articles, it appears the mail fraud charges are a cheap attempt to enlarge the possible window of necessity of calling Risen for authentication.

In other words, it appears likely that Welch is just using a gimmick to try to force Risen to testify.

Which brings us to Risen’s claim the government is harassing him. Of note, Brinkema dismisses the claim that a new Attorney General couldn’t harass Risen, because some of the other lawyers on the case might be Bush dead-enders.

The issuance of the 2010 subpoena under a new Attorney General does not remove the specter of harassment, because we do not know how many of the attorneys and government officials who sought Risen’s testimony in 2008 are still in their jobs and to what extent, if any, they advised the new Attorney General about approving the subpoena.

She also notes that requesting all his book proposals supports a harassment charge; I would suggest it does so more so when you consider the possibility they were harassing Risen for the warrantless wiretap story that would also have been in the book proposal. But Brinkema doesn’t consider the way the Obama Administration has made some crazy ass arguments to defend Bush against illegal wiretap charges, which shows Obama’s DOJ is protecting the program itself as fiercely as Cheney did. In addition, she doesn’t consider Welch’s history of being a sloppy, overly aggressive prosecutor (though her disapproval of the broad scope of the Welch subpoena suggests she’d be open to such an argument).

But given my suspicion that a community of interest subpoena in this case might have served as a fishing expedition for the government’s investigation in the warrantless wiretap case, I’m particularly interested in the date the grand jury was convened in this case.

A grand jury sitting in the Eastern District of Virginia began investigating the disclosures about the [MERLIN] operation in

or about March 2006.

That’s not surprising, mind you. But it does date when a grand jury subpoena asking for a community of record might have been issued. And it does suggest that this investigation started at the same time as the government was going apeshit over their exposure on the illegal wiretap front.

9 replies
  1. emptywheel says:

    Incidentally, the filing also reveals that Sterling claimed in a 2004 letter to Risen that the CIA was involved with the death of a judge.

    I do hope we get to see that letter at trial.

  2. MadDog says:

    As I commented yesterday, I totally agree with you that the DOJ is using the Sterling case as a vehicle to not only harass, threaten, and potentially punish Risen for his reporting on the Bush/Cheney regime’s illegal warrantless wiretapping (as well as send a warning salvo to others reporting on the criminal activities of the National Security State), but I also made the point that the dropping of the Thomas Tamm probe may have been because the DOJ might face intolerable scrutiny, if not criminal liability, for their own actions.

    The DOJ couldn’t withstand the heat in pursuing who leaked the info on the Bush/Cheney regime’s illegal warrantless wiretapping to Risen and the NYT, but their animus has not dissipated, hence one of the reasons for the continued effort to intimidate Risen et al.

  3. Frank33 says:

    The CIA gave nuclear weapons technology to Iran. That is a crime and the CIA needs to be prosecuted for giving nuclear weapons to terrorist nations. It was also a False Flag Op, trying to make it appear the Russians were giving nuclear weapons to terrorist nations. Perhaps the CIA actually wants a terrorist nuclear attack.

    The Russians and their secret services are no saints. But this reckless and criminal behavior by the CIA might suggest to the Russians that they do their own False Flag Ops against the USA.

    Sterling and Risen should be praised and rewarded. They revealed crimes, indefensible nuclear terrorism by the US Secret Services. The US Government has supplied automatic weapons to drug cartels but that seems rather tame in comparison to nuclear terrorism. This nuclear False Flag terrorism seems the type of operation that vicious spymaster Michael Hayden might plan. The US Government is criminally insane.

    • BoxTurtle says:

      VERY educational. Thanks for posting it.

      Boxturtle (I have now learned something new, so I can call it a day. And it ain’t even 8am yet!)

    • radiofreewill says:

      From the article:

      “A corporation is a legal person created by state statute that can be used as a fall guy, a servant, a good friend or a decoy,” the company’s website boasts. “A person you control… yet cannot be held accountable for its actions. Imagine the possibilities!”

      Wyoming Corporate Services’ Pitts appears to sell ‘shelf’ companies specifically to hide the intent and motive of the ‘owners’ – just like Welch appears to have used a ‘community of interest’ subpoena to hide his intent and motive to sweep-up Risen.

      In both cases, the ‘agents’ – Pitts the Pimp, and Peeping Welch – appear to claim not to be responsible for what happens on the dark side of their activities, even though there is ample evidence that both well know the consequences of their ‘set-ups.’

      If true, then like Pitts, Welch ‘knows’ what he’s doing: the ends are justifying the means without regard for the due process of the victims.

      In Pitts’ case, he’s immorally using ‘the Law’ to hide the activities of the immoral. In Welch’s case, he would be immorally using ‘the Law’ to find the activities of the moral.

      In both cases, Pitts and Welch are ‘bad actors’ with respect to ‘the Law.’

      Here’s hoping that Congress mandates the disclosure of shelf-company ownership, and that the Courts enforce the protection of a citizen’s right to due process.

  4. bmaz says:

    By the way, as a followup on both the warrantless wiretapping and Brinkema point on the same prosecutors working the case, it should be remembered that in the wiretapping case the government was, and as the only one left active, still is most “apeshit” about, al-Haramain, Obama not only intentionally left the case in the exact same Bush/Cheney hands at DOJ who were specially assigned to it from the start (even the appellate people are still the same), he reportedly gave them complete unmitigated and unfettered control to handle the case as they had been and desired to. In short, things not only look like they never changed and are the same as they were under Bush/Cheney, they ARE the same. Might be nice of Risen and Kurtzburg were to make sure Brinkema understands just how correct she is in this regard across the board in these somewhat interrelated matters.

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