Detroit Free Press reporter David Ashenfelter filed papers in federal court in Detroit this week asking the judge not to hold him in contempt for refusing to reveal his confidential sources.
A federal judge ruled in August that Ashenfelter was not protected by the First Amendment; so last month, he invoked his Fifth Amendment right to be free from self-incrimination during a deposition. Former federal prosecutor Richard Convertino is seeking Ashenfelter’s testimony in his Privacy Act lawsuit against the Department of Justice for leaking to the press details of an investigation into his conduct during a terrorism trial.
Convertino’s lawyers filed a motion in December asking a federal judge in Detroit to hold Ashenfelter in contempt. Convertino asked the court to impose sanctions on Ashenfelter that would rise incrementally from $500 to $5,000 a day, the same fines that were imposed on reporter Toni Locy in Dr. Steven Hatfill’s now-settled Privacy Act suit.
In Ashenfelter’s court papers, his attorney, Herschel Fink, argued that Ashenfelter’s invocation of the Fifth Amendment was necessary because he fears he could face criminal prosecution if he reveals his sources.
Fink argued that the law only requires Ashenfelter to show that criminal prosecution is possible, not probable. Among the crimes that Ashenfelter could be charged with include conspiracy for any crime committed by a government official; violations of the Privacy Act; perjury; false statements; obstruction of justice; theft and receipt of government records; violations of the Espionage Act; or Michigan state laws that criminalize possession of stolen material, Fink argued in the brief.
To gauge the likelihood that Ashenfelter would be prosecuted, Fink pointed to Convertino’s own allegations that the reporter had violated the law. In both court papers, and on Convertino’s blog, there are allegations that Ashenfelter broke the law by publishing information coming from the DOJ leak about the government’s investigation.
“In our view, the judge has no option but to say he does not have to testify,” Fink said.
A hearing is set for Feb. 11 to determine if Ashenfelter will be held in contempt.