After failing to persuade a federal judge of his First Amendment right to protect his confidential sources, Detroit Free Press reporter David Ashenfelter tried a new tactic Monday to keep their identities secret: He invoked his Fifth Amendment right not to incriminate himself.
Former federal prosecutor Richard Convertino sought to question Ashenfelter during a deposition in Detroit on Monday about the confidential sources the reporter used in a 2004 article on a Department of Justice investigation into Convertino’s misconduct during a terrorism prosecution. Convertino has sued Justice under the Privacy Act for publicizing information about the investigation and is seeking the sources from Ashenfelter to help with his lawsuit.
Since Convertino alleges that Ashenfelter, in refusing to give up his sources, is aiding the crime committed by those who illegally leaked the information in the first place, the reporter decided to invoke his Fifth Amendment right against making self-incriminating statements, the Free Press reported on Monday.
“The First Amendment ought to be enough to protect journalists,” the newspaper said in a statement. “They should not have to fear prosecution for serving the public’s right to know. They should not have to disclose confidential sources who risk retaliation to come forward with important information.”
The newspaper has refused to give up any sources and has challenged Convertino’s subpoena on First Amendment and common law grounds, but U.S. District Judge Robert Cleland, in Detroit, has repeatedly ruled against the newspaper.
The newspaper maintains that it still believes Ashenfelter has a First Amendment right to protect his sources, the Free Press reported.
Steven M. Kohn, Convertino’s attorney, told the Free Press after the deposition that he didn’t believe Ashenfelter had any basis to invoke the Fifth Amendment. He said he might ask the judge to hold Ashenfelter in contempt.
This isn’t the first time a reporter has invoked the Fifth Amendment as a way to protect sources. Washington Times reporter William Gertz successfully invoked it this summer when he was ordered to testify about confidential sources he used to report about a Chinese spy ring in California.