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Taking the Fifth to protect a source

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AP Photo Convertino, shown here in 2005, fought for years to force reporter Richard Ashenfelter to reveal his sources on…

AP Photo

Convertino, shown here in 2005, fought for years to force reporter Richard Ashenfelter to reveal his sources on a Justice Department investigation.

A former Detroit Free Press reporter has finally won an eleven-year fight with a former federal prosecutor over the identity of an anonymous source, and his use of the Fifth Amendment to protect his newsgathering may have repercussions for other journalists protecting their confidential sources.

The U.S. Court of Appeals for the Sixth Circuit ruled that David Ashenfelter can claim Fifth Amendment protection against having to reveal the name of an anonymous source. Former assistant U.S. Attorney Richard Convertino had demanded the identity of Ashenfelter’s source for a 2004 article as part of a Privacy Act suit against the Department of Justice.

Convertino had been the subject of an internal inquiry and criminal prosecution for obstruction of justice as part of a controversial and contentious terrorism investigation he led of a reputed terrorist “sleeper cell” in Detroit, which was the first terrorism trial conducted after the acts of September 11. Convertino was acquitted of the charges against him, and he claimed that the inquiry and prosecution, and the leak to Ashenfelter that started them, were made by Justice officials to retaliate for his criticism of the department’s prosecution strategy against terrorists.

Convertino served subpoenas both on Ashenfelter and Gannett, the owner of the Detroit Free Press, demanding the identity of the source for his 2004 article on the internal investigation of Convertino. When a federal district court judge ruled in 2008 that Ashenfelter could not use the First Amendment to avoid testifying, the reporter took his cue from Convertino’s allegations that Ashenfelter, in refusing to give up his sources, was aiding the crime committed by those who illegally leaked the information in the first place. Citing that threat, Ashenfelter invoked his Fifth Amendment right against making self-incriminating statements.

The district court held in February 2010 that the Fifth Amendment protected Ashenfelter. Convertino unsuccessfully objected to that holding, and then renewed his objection in 2013, after then-Attorney General Eric Holder made a statement in an unrelated matter that, as long as he was attorney general, “no reporter who is doing his job is going to go to jail.” Convertino argued that this statement showed that Ashenfelter would not be prosecuted for his alleged role in violating the Privacy Act, and thus could not use the Fifth Amendment defense. The judge disagreed, and Convertino later appealed.

The Sixth Circuit upheld the Fifth Amendment argument, finding that if Convertino proved certain facts in his suit against the Justice Department, including that federal officials illegally gave Ashenfelter confidential documents, the reporter would be implicated in the commission of crimes.

The Fifth Amendment does not turn on the probability or likelihood of prosecution but on the possibility, the court found.

“The former Attorney General’s statement did not constitute a grant of immunity to journalists, and his assurances might not outlast his own, now completed, tenure,” the Sixth Circuit panel added. “Even if Holder’s statement reflected a policy internally enforced by the DOJ, Ashenfelter could not invoke that policy to bar a criminal prosecution.”

Herschel Fink, the attorney for the Detroit Free Press, said he thought the language in the Sixth Circuit opinion established strong protections for journalists under the Fifth Amendment, a key “weapon in the arsenal of their defenses” when the First Amendment did not protect them from having to testify about confidential sources.

“I think that it really provides an alternate argument of privilege, albeit under the Fifth Amendment, for reporters, particularly those who are involved in governmental leak cases or national security cases,” he said.