The battle over confidential sources between former Assistant U.S. Attorney Richard Convertino and Detroit Free Press reporter David Ashenfelter shifted from First Amendment freedoms to Fifth Amendment protections after Ashenfelter refused to answer questions at a Dec. 31, 2008 deposition, citing the right against compelled self-incrimination.
The Michigan judge overseeing discovery issues in the case ordered Ashenfelter to attend another deposition Feb. 26, 2009 or explain under oath why the Fifth Amendment privilege should apply. The order, Convertino v. U.S. Department of Justice, No. 07-CV-13842, 2009 WL 497400 (E.D. Mich. Feb. 26, 2009), directed the parties to hold the new deposition at the courthouse where U.S. District Court Judge Robert Cleland would be available to quickly dispose of subsequent issues.
On March 4, 2009, Ashenfelter filed an emergency motion asking Cleland for permission to explain his assertion of the Fifth Amendment in camera, meaning Cleland could privately review factual information submitted by Ashenfelter and might not share those facts with Convertino or his lawyers.
The December deposition was scheduled in response to an Aug. 28, 2008 order compelling Ashenfelter to answer questions about a story he wrote for the Free Press in 2004. The story detailed misconduct by the Justice Department in a terrorism trial led by Convertino.
Ashenfelter had previously refused to answer Convertino’s questions about the story, citing a constitutional or common law reporter’s privilege. But in the August order, Convertino v. U.S. Department of Justice, 2008 WL 4104347, No. 07-CV-13842 (E.D. Mich. Aug. 28, 2008),Cleland held there is no such privilege for reporters in the 6th Circuit and ordered Ashenfelter to answer questions about his sources. (See “Judge Orders Michigan Reporter to Give Up Sources in Privacy Act Case” in the Fall 2008 Silha Bulletin.)
Cleland later affirmed his decision in two November rulings refusing to reconsider whether Ashenfelter was entitled to a reporter’s privilege. Those decisions are Convertino v. U.S. Department of Justice, 2008 WL 4998369, No. 07-CV-13842 (E.D. Mich. Nov. 21, 2008), and Convertino v. U.S. Department of Justice, 2008 WL 4852936, No. 07-CV-13842 (E.D. Mich. Nov. 7, 2008).
The dispute stems from a suit under the Privacy Act, 5 U.S.C. 552a, filed by Convertino against the Justice Department in 2004, alleging officials in the department violated the statute when they leaked information about his conduct in the terrorism trial to reporters. Ashenfelter is not a party to the suit. (See “Gannett Co. Subpoenaed to Disclose DOJ Source” in the Fall 2006 Silha Bulletin.)
The Privacy Act makes it illegal for federal government agencies to disclose certain records that the agencies maintain about individuals without the consent of the named individuals. It also creates a private right of action for individuals to sue the government agency if those records are improperly disclosed.
Ashenfelter’s latest attempt to protect the identity of his sources relies on the criminal provisions of the Privacy Act. The same statute that creates a civil cause of action for Convertino to sue the Justice Department could give rise to federal criminal sanctions for the Justice Department officials who allegedly leaked information to Ashenfelter. Because Ashenfelter allegedly participated in those crimes, he could be charged as a “co-conspirator and participant in, and accessory to” those crimes, his brief argues.
In addition to the Privacy Act, the Ashenfelter brief cites several additional federal statutes under which criminal charges for publishing confidential government information potentially could be brought including, among several others, statutes that criminalize disclosure of classified information, 18 U.S.C. 798, 1905, and 1924; theft of government property, 18 U.S.C. 641; and espionage, 18 U.S.C. 793.
Therefore, a brief filed with the court on Jan. 21, 2009 argued, the court cannot compel him to divulge his sources of information on the 2004 terrorism trial under the Fifth Amendment because that testimony could later be used against him in a criminal proceeding.
The text of the Fifth Amendment guarantees that “No person … shall be compelled in any criminal case to be a witness against himself … .” According to Ashenfelter’s brief, courts have interpreted the provision liberally and applied it in a variety of proceedings including depositions. The brief goes on to state that courts must uphold the Fifth Amendment privilege claim if there is sufficient evidence “to imagine the possibility” that Ashenfelter’s testimony could “supply a link in the chain of evidence needed to prove a crime.”
In a reply brief filed Jan. 28, 2009, Convertino argues that the Fifth Amendment claim is nothing but a tactic to delay a contempt order. The brief states that the statute of limitations has run out on most of the crimes Ashenfelter listed in his brief and that the Justice Department’s investigation into the leak was closed more than four years ago.
“Accordingly, even were prosecution for most of the crimes Mr. Ashenfelter cites not barred by the statute of limitations, any fear of prosecuted [sic] he had was completely unreasonable and purely speculative – certainly insufficient to support an assertion of the Fifth Amendment,” the Convertino brief states.
At a Feb. 11, 2009 hearing on the Fifth Amendment claim, Cleland initially seemed receptive to Convertino’s argument that Ashenfelter’s main purpose was delay, The Associated Press (AP) reported Feb. 12, 2009. “Looks like someone is playing games, sandbagging,” Cleland said. “That poses a very problematic situation.”
But later in the hearing, the judge heard testimony from a Justice Department lawyer who said she could not say whether Ashenfelter or his sources would be criminally prosecuted for the 2004 leaks, the AP report said. “There could be circumstances where there could be an ongoing conspiracy,” attorney Elizabeth Shapiro said. “It’s not helpful to respond with maybes, but I’m not able to give you anything concrete.”
Cleland held that there are three scenarios where the Fifth Amendment privilege might apply. The first two – questions that call directly for an incriminating answer and questions that appear to call for innocent answers but “are dangerous in light of other facts already developed” – did not apply because Ashenfelter refused to answer all but four questions and the factual record contained very little information from which inferences about future prosecutions could be drawn, Cleland wrote.
But the third – questions that appear innocent but are met with “sufficient evidence such that the ‘court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution’” – may apply if Ashenfelter testifies or swears to facts that show there is a possibility he will be prosecuted. It is not enough, Cleland wrote, for Ashenfelter’s attorneys simply to argue that he may be prosecuted for a crime.
William Gertz, a Washington Times reporter, had some success with a similar Fifth Amendment argument in front of a federal judge in California in July 2008, The Sun (New York) reported July 25, 2008. When asked to reveal the identity of a source who supplied information about a confidential grand jury hearing, Gertz declined, citing the Fifth Amendment privilege. But according to The Sun’s story, the judge later ruled Gertz did not have to testify based on First Amendment news gathering protections rather than compelled self-incrimination concerns.
– Michael Schoepf