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A Point of Order Final Exam

Consider the following facts:

Jeffrey Sterling served as a CIA officer from 1993 to January 31, 2002. During that time, he became acquainted with a clandestine operational program that was designed to disrupt the nuclear development activities of Iran. According to a book later written by James Risen, this program involved a “botched attempt under the Clinton administration to sabotage Iran’s nuclear program by giving flawed blueprints for key components to a Russian nuclear scientist who had defected. The idea was that the Russian scientist, who was covertly working for the CIA, would feed the flawed designs to the Iranians. But according to the book, the CIA’s efforts went awry when the scientist got nervous and instead tipped off the Iranians to the flaws in the designs.”

The operation, codenamed “Merlin,” was sort of like a nuclear “Fast and Furious.”

Following his less than amicable separation from the CIA in 2002, Sterling approached the Senate Select Committee on Intelligence (SSCI) with information about Operation Merlin in March 2003. He met with SSCI staffers Don Stone and Vicki Divoll and told them that the program had not only been a failure, but may have assisted the Iranians in advancing their nuclear program.

Less than a month after this meeting, Risen, a reporter with the NY Times, approached the CIA asking for comments for an article he was writing about Operation Merlin. In June 2003 Divoll left SSCI. Stone left SSCI in March 2005 to take charge of oversight at the House Permanent Select Committee on Intelligence (HPSCI). He returned to SSCI in January 2007 and served there until June 2010, when he left to pursue opportunities in the private sector.

The Bush administration was able to persuade the Times not to publish Risen’s article in 2003, but Risen later published the aforementioned book in January 2006. A grand jury was empaneled in March 2006 to determine how Risen had obtained the highly classified information regarding Operation Merlin. The investigation focused on Sterling as the source of the leak. After the initial grand jury expired, a second grand jury was empaneled in July 2009.

In connection with the grand jury investigation, the Justice Department asked the Senate to provide certain information. In response to these requests, the Senate passed a July 2010 resolution, which resolves “That the Chairman and Vice Chairman of the Senate Select Committee on Intelligence, acting jointly, are authorized to provide to the United States Department of Justice, under appropriate security procedures, copies of Committee documents sought in connection with a pending investigation into the unauthorized disclosure of classified national security information, and former and current employees of the Committee are authorized to testify in proceedings arising out of that investigation, except concerning matters for which a privilege should be asserted.” (emphasis added).

The resolution also asserts the Senate’s traditional position that “no evidence under the control or in the possession of the Senate may, by the judicial or administrative process, be taken from such control or possession but by permission of the Senate.” (In theory, this is also the House’s position, but House Rule VIII serves in essence as a standing waiver in that regard). Note that this position applies to all such information, regardless of whether it is privileged under the Speech or Debate Clause or otherwise.

Sterling was indicted in January 2011 in the Eastern District of Virginia. The case was assigned to U.S. District Judge Leonie Brinkema, who has presided over more than her share of sensitive national security cases and has previously considered issues related to the relationship of congressional investigations to such cases.

Sterling’s attorneys have now asked Judge Brinkema to authorize trial subpoenas to the Senate for documents and to Stone, Divoll and a current SSCI staffer for testimony. The documents sought include telephone records of any calls with Risen, personnel records relating to the three Senate staffers, documents relating to any investigation of mishandling of classified information by any of these staffers, and “[d]ocuments that reflect the basis for the termination of Vicki Divoll’s employment with the United States Senate.”

Sterling’s lawyers contend that they need this evidence in order to demonstrate that one or more of the Senate staffers, rather than Sterling, may have been the source of Risen’s information. They point to the fact that Risen asked the CIA about Operation Merlin shortly after the staffers learned of it. Moreover, they claim to have evidence that SSCI “terminat[ed] Ms. Divoll’s employment with the Senate because she breached SSCI confidentiality rules by providing information to Mr. Risen.” Divoll denies this allegation.

The litigation regarding this matter is currently stayed while the parties try to work out an agreement. For present purposes, assume that the negotiations break down and that you, as law clerk to Judge Brinkema, must analyze the following issues:

 

  1. Does a criminal court need the permission of the Senate in order to obtain documents and/or testimony in the possession or control of the Senate?
  2. Can the court order the Senate to produce documents? If the Senate fails to comply with the order, how could the court enforce it?
  3. Does the Speech or Debate privilege protect the Senate against disclosure of documents within the legislative sphere? Should the Fourth Circuit follow the lead of the D.C. Circuit or that of the Ninth and Third Circuits with regard to the existence of a nondisclosure privilege?
  4. Which of the evidence sought by Sterling falls within the legislative sphere? Are the personnel records of committee staff covered? If leaks to the media do not fall within the legislative sphere, would internal committee investigations related to potential leaks likewise be excluded?
  5. What is the effect of the July 2010 resolution? Does it apply to subpoenas from the court, or only to requests from the Justice Department? Does the resolution give SSCI unlimited discretion as to whether or not to assert a privilege?
  6. Do the resolution and/or the prior disclosure of information to the Justice Department waive Speech or Debate or any other right or privilege of the Senate?
  7. If the court is unable to compel the production of information relevant to whether Senate staffers could have been the source of Risen’s information, how does this affect Sterling’s right to a fair trial? Must the court dismiss the charges based upon a violation of Sterling’s due process rights?

 

Yeah, I know, some people spend Labor Day at picnics.

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