The reporter will submit the affidavit on Friday. It will be sealed from public view. Ashenfelter is trying to protect confidential sources he used to report on an investigation into the conduct of former federal prosecutor Richard Convertino during a 2001 Detroit terrorism trial.
The reporter refused to testify at a December deposition, instead invoking the Fifth Amendment right against self-incrimination.
Sealed in-camera affidavits are not typically part of cases in which reporters fight to protect sources, Ashenfelter’s attorney, Herschel Fink, said.
But last week, in response to a motion filed by Convertino asking the judge to find Ashenfelter in contempt, Cleland ordered that Ashenfelter further explain why his invocation of the Fifth Amendment was appropriate. The judge ruled that Ashenfelter could either testify at another deposition or submit an affidavit, to be seen only by the judge.
“[Cleland’s order from last week was highly unusual,” Fink said. “We don’t think there is any precedent for requiring that kind of factual showing in support of invoking the Fifth Amendment. But we are trying to comply.”
Once the affidavit is submitted, Cleland will determine if he agrees with Ashenfelter’s reasons: “After reviewing the intended affidavit, the court will be in a better position to determine if further argument is required,” the judge wrote.