Detroit Free Press reporter’s subpoena battle with former terrorism prosecutor nears end

From the Spring 2011 issue of The News Media & The Law, page 21.

A federal judge recently all but ended a lengthy legal battle that centered around a reporter’s confidential sources and came to epitomize the need for a federal shield law.

Meanwhile, media advocates conceded that the failure to secure passage of a shield law during the last congressional term was a “missed opportunity” that likely will not arise again before the presidential election in fall 2012.

A U.S. District Court judge in Washington, D.C., in March dismissed Richard Convertino’s lawsuit against the U.S. Department of Justice, ending the former federal prosecutor’s seven-year pursuit of the identity of the source who leaked information to Detroit Free Press reporter David Ashenfelter.

In 2004, the Pulitzer Prize-winning reporter authored an article about the Department of Justice’s investigation into Convertino’s alleged misconduct in the high-profile prosecution of suspected Detroit terrorists, the first terrorism trial after the 9/11 attacks. Convertino won convictions for three of the defendants, but they were later overturned when the government alleged that Convertino violated federal rules by failing to turn over potentially exculpatory evidence to the defense.

Convertino later resigned from his position and sued the Department of Justice for damages for alleged violations of the Privacy Act, claiming that an unknown official in the department, knowing “the leak would destroy [Convertino’s] reputation,” disclosed details from the internal investigation to Ashenfelter, according to the court’s March 24 opinion granting the Department of Justice’s motion for summary judgment. The anonymous employee did so as retaliation against Convertino because of his testimony before Congress that the department was not giving prosecutors enough support in their terrorism prosecutions, the former prosecutor claimed.

The Privacy Act governs federal agencies’ acquisition, maintenance and control of records containing information about individuals. It limits what information agencies may maintain about individuals, requires them to establish appropriate safeguards to ensure the confidentiality of records and restricts the agencies’ authority to disclose records.

However, courts have ruled that Privacy Act plaintiffs may only recover if they can identify the specific government employee or official who disclosed the private information to a person not authorized to receive it.

“Pared down to essentials, this case is the simple story of Richard G. Convertino’s unsuccessful quest to unmask the leaker of his private information,” Chief U.S. District Judge for Washington, D.C., Royce C. Lamberth said. “Seven years of litigation have sapped the resources of more than one United States District Court, yet Convertino is no closer to answering the most basic question of all: Who done it?”

When other attempts to identify the leaker failed, Convertino subpoenaed Ashenfelter, the Free Press and its parent company Gannett Co. Inc. in the Eastern District of Michigan for the identity of Ashenfelter’s source. Convertino later withdrew the subpoena to Gannett, and a federal judge in Michigan denied his motion to compel compliance by the Free Press.

Convertino filed his Privacy Act claim in Washington, D.C., where the Department of Justice is headquartered. However, because Ashenfelter lives and works in Michigan, the subpoena for his testimony, needed for the underlying claim to proceed, was issued by a court there. As such, he is affected by developments in both courts.

In the subpoena battle in Michigan, he was not as lucky as his employer. The case was in federal court, so he could not invoke the protections of the Michigan shield law. He tried to argue that the First Amendment-based reporter’s privilege to refuse to disclose the names of sources or other information obtained during newsgathering protected him from the compelled disclosure, but the judge ruled that no such privilege exists in the U.S. Court of Appeals in Cincinnati (6th Cir.), the federal appellate court with jurisdiction over Michigan.

Conceivably, Ashenfelter could have relied on a federal shield law under which the judge would have balanced national security concerns against his First Amendment interests. Yet, the most recent version of the Free Flow of Information Act had not yet passed the U.S. House of Representatives at that time, let alone the U.S. Senate Judiciary Committee, where momentum for the measure stalled, preventing it from ever reaching the Senate floor.

Finding that the identification of Ashenfelter’s source or sources was necessary for Convertino to have any chance of prevailing in his Privacy Act suit against the Department of Justice, the Michigan judge ordered Ashenfelter to disclose the source.

In response, the reporter invoked his Fifth Amendment right not to incriminate himself, a move “inspired by Convertino himself claiming Ashenfelter was a criminal because he was in a criminal conspiracy with whoever leaked the information,” according to Herschel Fink, a Detroit media lawyer who represents the Free Press and Ashenfelter. Convertino made these allegations in court papers and on a blog, Fink said.

The Michigan court accepted Ashenfelter’s Fifth Amendment objections, “find[ing] at least minimally sufficient facts to support such conclusion that Ashenfelter’s silence, maintained through the protections claimed under the Fifth Amendment, is a valid assertion of his rights, and his objections to deposition questions which sought a connection to the identity of his source have been sustained.”

Accordingly, Convertino’s Privacy Act claim against the Department of Justice could not stand, according to the Washington, D.C., judge presiding over that proceeding. In order to succeed on the suit, Convertino needed to prove that the Department of Justice willfully or intentionally violated his rights under the act and that the leaker was acting within the scope of his or her employment with the department at the time of the unauthorized leak. As such, Convertino’s inability to identify the leaker proved fatal to his claims, the court ruled.

“Convertino has made a monumental effort to identify Ashenfelter’s source(s) and has had absolutely no success . . . Convertino cannot answer the question that lies at the heart of his case,” the court said. “Lacking that vital information, Convertino is defenseless against DOJ’s motion for summary judgment.”

Fink said the “unique” allegations by the party seeking the reporter’s testimony in this case lent themselves to a successful invocation of the Fifth Amendment privilege. Ordinarily, the facts are such that journalists cannot rely on the constitutional protection against self-incrimination in refusing to name their sources; indeed, instances of such are rare.

In June 2008, an Illinois judge allowed Chicago Sun-Times music critic Jim DeRogatis to plead the Fifth Amendment in declining to testify in singer R. Kelly’s child pornography trial because DeRogatis himself might have committed a crime by copying a tape that prosecutors alleged depicted Kelly having sex with an underage girl. This ruling came only after DeRogatis unsuccessfully invoked the First Amendment-based reporter’s privilege, which the judge found inapplicable.

Shortly thereafter, The Washington Times national security reporter William Gertz tried the same tactic when subpoenaed to testify about improper leaks of grand jury information he relied on for an article about the prosecution of a Chinese spy ring.

The federal judge in California dodged the Fifth Amendment issue, instead ruling that Gertz was protected because the public’s interest in unfettered reporting outweighed the interest in forcing a journalist to testify.

Media lawyers say the use of the Fifth Amendment is an outgrowth of the weakened First Amendment privilege and highlights the need for a robust statutory privilege on the federal level to protect the identities of confidential sources used to report about matters of public concern. Ashenfelter’s subpoena fight is perhaps the most compelling illustration of the need, because his use of confidential sources enables him to inform the public about government wrongdoing through a type of watchdog journalism that is vital to a thriving democracy, they say.

Ashenfelter was a member of the reporting team that won the Pulitzer Prize in 2009 for its coverage of the text-message scandal that resulted in Detroit Mayor Kwame Kilpatrick’s ouster from office and subsequent criminal conviction. He also shared a Pulitzer Prize for Public Service with a colleague at The Detroit News in 1982 for exposing how the U.S. Navy covered up peacetime deaths of sailors.

But Ashenfelter and other journalists who use leakers to report on government misconduct must continue to rely on possibly unreliable arguments like the Fifth Amendment to protect their sources, at least for the near future.

Although “the stars had really aligned” for the long-awaited passage of bipartisan legislation that would have established a federal shield law, delays in getting the measure before the full Senate and the publication of leaked government documents on the website WikiLeaks effected the same fate for the bill as that met by its numerous predecessors, said Kurt Wimmer, a Washington, D.C., media lawyer who worked to move the shield bill through Congress.

A significant amount of “footwork had already been done,” and reintroduction of the bill this congressional term, which began in January with a markedly different makeup, would require lobbying and negotiation efforts to start anew — a daunting undertaking as presidential politics begin to take center stage, Wimmer said.

Nonetheless, “I don’t see us stopping forever. We are just on hiatus,” he said.

Part of this footwork included negotiations with the Obama administration over the definition of a “covered person” entitled to invoke the law’s protections and disclosures of classified national security information, said Paul Boyle, senior vice president of governmental affairs for the Newspaper Association of America, a driving force behind the shield bill.

The House passed its federal shield bill in March 2009, and the Senate Judiciary Committee voted in December 2009 to present the measure to the full Senate.

Despite this milestone, senators from both parties continued to express reservations about the legislation, specifically its definition of a journalist, which the approved committee bill defined as a person who has the intent to disseminate information to the public.

Senate sponsors promised they would continue to work with colleagues who wanted to limit the definition to cover an employee of a media outlet, salaried or non-salaried, exclude those who write anonymously and apply only to information disseminated through a “news medium,” a definition that would exclude some electronic media.

“We really had a lot of momentum at that time, December 2009,” Boyle said. “But getting to the full debate on the Senate floor took too much time, and we lost the momentum and ran out of time.”

And the August 2010 publication of 75,000 Afghanistan war documents by WikiLeaks was perhaps the bill’s death knell. In response, senators began drafting an amendment to expressly exclude websites that publish leaked government documents without editorial content.

“WikiLeaks blew us out of the water,” said Boyle, adding that he will continue to coordinate the efforts of the bill’s supporters, which include more than 70 news media organizations nationwide.

Although two of Congress’ biggest proponents of the bill — Rep. Rick Boucher, D-Va., and Sen. Arlen Specter, D-Pa. — lost their seats in November’s mid-term elections, chief sponsor Charles Schumer, D-N.Y., recently said in a letter to the editor of The (Glens Falls, N.Y.) Post-Star that he intends to introduce shield law legislation this congressional session and work for its passage. A few days later, Schumer’s colleague and bill co-sponsor, Kirsten Gillibrand, D-N.Y., echoed her vigorous support for the measure.

Back in Michigan, Ashenfelter and the Free Press continue to defend themselves in the subpoena battle with the former federal terrorism prosecutor. The federal judge there recently issued an order to show cause why an outstanding motion to compel compliance by the Free Press that Convertino renewed after Ashenfelter invoked the Fifth Amendment and the paper’s responsive motion for a protective order should not be dismissed as moot in light of the dismissal of the Privacy Act claim. Convertino convinced the court not to dismiss the action because he plans to appeal the dismissal to the U.S. Court of Appeals in Washington, D.C.

Ashenfelter asked the court to reconsider the non-dismissal, which it agreed to do, ordering Convertino to respond to Ashenfelter’s claim that the Michigan court now lacks jurisdiction over the case and thus must dismiss it. Although the end appears to be near, the already protracted litigation continues.

“I’ve said all along that this case just underscores the need for a federal shield law,” said Fink, the attorney for Ashenfelter. “We don’t believe that Ashenfelter has done anything but engage in good journalism.”