A federal appeals court turned aside a major showdown over reporter's privilege Tuesday, refusing to have the court's full bench re-hear a case that resulted in a July ruling that a New York Times reporter had no right to decline to testify at the criminal leak trial of his alleged source.
No judge beyond the one who dissented from the July decision called for the case to be reheard en banc, according to an order released by the U.S. Court of Appeals for the Fourth Circuit (and posted here). The vote was 13-1 against the petition filed by attorneys for Times reporter James Risen, whose testimony the government sought in the case against former CIA officer Jeffrey Sterling.
The ruling tees up a likely Supreme Court petition from Risen to seek to overturn the 4th Circuit's ruling that he must testify. However, the Justice Department has also said that the case is under review. It's possible prosecutors could withdraw the subpoena, particularly under new guidelines Attorney General Eric Holder issued in July limiting efforts to seek information or testimony from journalists.
Risen's attorney did not immediately respond to messages seeking comment. The Times reporter has said he will go to jail rather than testify about his confidential sources. "I will, of course, keep fighting," he told POLITICO Tuesday.
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