Judge Rules in Ashenfelter's Favor on Fifth Amendment; Reporter Protects Sources and Avoids Contempt Order

A U.S. District Court Judge in Michigan ruled April 21, 2009 that Detroit Free Press reporter David Ashenfelter could refuse to answer questions about confidential sources based on the Fifth Amendment right against compelled self incrimination.

The ruling came at a closed-door deposition at the Theodore Levin Federal Courthouse in Detroit.It was related to former Assistant U.S. Attorney Richard Convertino’s ongoing lawsuit against the Department of Justice.

Convertino’s lawsuit claims that the Justice Department violated the Privacy Act, 5 U.S.C. 552a, when it leaked information to reporters about his alleged misconduct during a 2003 terrorism trial. Ashenfelter, who first wrote about Convertino’s handling of the trial on Jan. 17, 2004, is not a party to the lawsuit. (See “Gannett Co. Subpoenaed to Disclose DOJ Source” in the Fall 2006 issue of the Silha Bulletin.)

At the April 21 deposition, Convertino’s lawyer, Stephen Kohn, objected when Ashenfelter cited the Fifth Amendment in refusing to name his sources. But Judge Robert Cleland, who was present at the deposition, upheld the refusal without further explanation, Ashenfelter’s lawyer Richard Zuckerman said in an April 22 Associated Press (AP) story.

Ashenfelter first asserted a Fifth Amendment privilege at a Dec. 31, 2008 deposition after Cleland ruled in August 2008 that Ashenfelter could not rely on a First Amendment privilege to protect his confidential sources. (See “Judge Orders Michigan Reporter to Give Up Sources in Privacy Act Case” in the Fall 2008 Silha Bulletin and “Ashenfelter Pleads the Fifth in Ongoing Effort to Protect Confidential Sources” in the Winter 2009 Silha Bulletin.)

The Fifth Amendment provides that “No person … shall be compelled in any criminal case to be a witness against himself … .” Ashenfelter argued that because he could foreseeably be charged as a co-conspirator with his sources under the Privacy Act, he could not constitutionally be forced to name the alleged co-conspirators in a deposition.

The Privacy Act creates criminal sanctions as well as civil penalties for government officials who disclose recorded information about an individual without the consent of that individual. Convertino is suing the Justice Department under the statute for illegally disclosing to Ashenfelter information about his alleged mishandling of a 2003 terrorism trial. In order to succeed, Convertino has to prove the identity of the official who made the disclosure.

Convertino objected to Ashenfelter’s Fifth Amendment claim, and in February 2009 Cleland agreed, ruling that Ashenfelter could not assert a blanket Fifth Amendment privilege and refuse to answer all of Convertino’s questions. Instead, Cleland suggested Ashenfelter submit a detailed affidavit laying out his specific objections to each question and scheduled the April deposition when he would be present to rule individually on Ashenfelter’s privilege claims.

Ashenfelter submitted a sealed affidavit in late March and a motion asking Cleland to rule immediately on his Fifth Amendment claim or certify the question for an interlocutory appeal to the 6th Circuit U.S. Court of Appeals. Appeals are typically barred unless the trial court has reached a final decision in a case, but in certain circumstances an appellate court will consider a preliminary issue – like Ashenfelter’s Fifth Amendment claim – if asked to do so by the trial court. The procedure is called an interlocutory appeal.

Cleland, however, refused both requests in a March 31, 2009 ruling, Convertino v. U.S. Department of Justice, No. 07-CV-13842, 2009 WL 891701 (E.D. Mich. March 31, 2009), setting the stage for the April 21 deposition.

The March ruling made clear that Ashenfelter’s sealed affidavit might play a part in Cleland’s ultimate rulings on Ashenfelter’s Fifth Amendment claims, but only on a question-by-question basis at the April deposition. Cleland also denied the interlocutory appeal, holding it was premature since he had yet to uphold or deny the privilege claims.

“Ashenfelter is simply expected to appear for his deposition as ordered. Should he choose to then refuse to answer questions based on a particular objection, the court will consider the asserted basis at that time, assisted perhaps by his affidavit submission,” Cleland wrote.

Free Press Publisher David Hunke and Editor Paul Anger joined Ashenfelter, Cleland, Zuckerman, and Kohn at the April 21 deposition, which was closed to the public. But only the two lawyers would comment on the proceedings, the April 22 AP story said.

“We stand by our position that the Detroit Free Press is not a criminal enterprise. [The Fifth Amendment claim] is a red herring,” Kohn said, according to the AP.

But Zuckerman said that the Fifth Amendment claim was not about whether Ashenfelter broke the law, but about the risk of criminal prosecution, the AP story said. “The Fifth Amendment is asserted because prosecutors may act irrationally,” Zuckerman said.

According to an April 22, 2009 story in the Free Press, advocates for reporters praised the ruling, but also argued it pointed to the need for further safeguards for reporters seeking to protect confidential sources.

“It’s a victory for freedom of the press today,” said Lucie Morillon, Washington, D.C. director for Reporters sans Frontieres (RSF or Reporters Without Borders). “Sources who want to come forward with important information need to know that journalists are able to keep their words and not give their names away.”

– Michael Schoepf
Silha Fellow

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This page contains a single entry by cla published on October 12, 2009 11:18 AM.

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