Leaning on the Fifth

From the Winter 2009 issue of The News Media & The Law, page 23.

With no federal shield law on the books and a First Amendment-based reporter’s privilege weakened in many courts, journalists are turning anew to an old tool to fight subpoenas for their confidential sources — the Fifth Amendment, the right against self- incrimination.

The most recent reporter to invoke the Fifth Amendment is David Ashenfelter, the Pulitzer Prize-winning Detroit Free Press journalist who has been battling a subpoena from former federal prosecutor Richard Convertino for two years.

A federal judge in Detroit held a hearing in early February to determine if Ashenfelter should be held in contempt for invoking the Fifth Amendment and not testifying. The judge’s decision is forthcoming.

But his invocation of the Fifth Amendment to protect confidential sources is not itself new. A handful of other reporters have done so when the First Amendment failed to protect them. Sometimes, it can provide a strong argument to keep a reporter from having to testify. But unlike a shield law or even a qualified reporter’s privilege rooted in the First Amendment, the right against self-incrimination is not always a viable option for a reporter.

Ashenfelter’s road to the Fifth Amendment

Richard Convertino was an assistant U.S. attorney in Detroit when he prosecuted the first terrorist trial after the Sept. 11, 2001 attacks on the World Trade Center. The defendants were labeled a “Detroit sleeper cell” of terrorists, and were alleged to be planning an attack.

Convertino won convictions for three of the defendants, and the Department of Justice and then Attorney General John Ashcroft hailed the case as a victory in the “war on the terror.” But the case unraveled when secret evidence was made public that the defense argued showed the defendants’ innocence.

The government alleged that Convertino had violated federal rules by failing to turn over the evidence to the defense, and officials began an internal investigation into his alleged misconduct. Convertino, who had been called to testify before Congress about the government’s anti-terrorism tactics, denied wrongdoing and argued that the government’s investigation into him was retaliation for his congressional testimony.

Meanwhile, Ashenfelter was following the situation closely and using confidential sources in the government to report about the debacle.

In 2006, Convertino sued the Justice Department under the Privacy Act for leaking information about the investigation to the press. To boost his lawsuit, he subpoenaed Ashenfelter for his confidential sources.

Ashenfelter first argued that a First Amendment-based reporter’s privilege protected him from having to testify. But in September, U.S. District Judge Robert Cleland in Detroit ordered Ashenfelter to testify and ruled that no such privilege exists in the Sixth Circuit.

A month later, Ashenfelter asked Cleland to issue a protective order that would shield him from having to testify, but again Cleland refused, reiterating his ruling that there was no First Amendment privilege to protect the reporter.

Finally, at a deposition in December, when Convertino’s lawyers attempted to ask Ashenfelter about his Justice Department sources, the reporter invoked the Fifth Amendment right against self-incrimination.

Though the First Amendment-based privilege would have been preferable, Herschel Fink, Ashenfelter’s attorney, said that when that proved to be an unsuccessful argument, he hoped the Fifth Amendment would serve as a helpful stand-in.

“I wouldn’t say that the Fifth is the new First,” Fink said. “It is very fact-specific. There are cases in which I think it would work and others where it won’t.”

A privilege against self-incrimination

The Fifth Amendment says no person “shall be compelled in any criminal case to be a witness against himself.” If a person is testifying in any judicial setting, civil or criminal, the Fifth Amendment privileges that person from having to speak about anything that might be incriminating.

To successfully invoke the Fifth Amendment, though, the witness first must show there is a possibility that criminal prosecution would result from the testimony. Prosecutors will sometimes step in and grant the witness immunity — meaning they promise not to prosecute the person if he or she says something incriminating. In that case, the burden is back on the witness to testify.

This could be a burdensome limitation to a reporter’s reliance on the Fifth Amendment, said criminal attorney Robert Bennett. He represented then-New York Times reporter Judith Miller when she refused to give up her confidential sources during the investigation into the leak of CIA operative Valerie Plame’s undercover identity.

“If a reporter asserts the Fifth because somehow they are a participant in the underlying events,” Bennett explained, “the granting of immunity wipes out that risk and they are required to testify.”

But in instances where immunity is off the table, as it appears to be in Ashenfelter’s case, the Fifth Amendment provides a shield for the witness, barring him or her from having to testify. Fink said he’s not worried Justice officials will grant immunity to Ashenfelter, given that his silence benefits their side of the Privacy Act lawsuit.

As such, in many similar situations, leaning on the right against self-incrimination can be a potent strategy for reporters who are pressured for their confidential sources, said Len Niehoff, a media lawyer and a law professor at the University of Michigan Law School. Where the First Amendment is often subject to a balancing test, the Fifth Amendment, “by contrast, is an extremely robust privilege” with more absolute standing in court, Niehoff said.

A criminal act?

Convertino has argued that Ashenfelter’s invocation of the Fifth Amendment should not hold up, claiming that it’s unlikely that Ashenfelter will actually be prosecuted for any of his testimony.

In a move that readily calls to mind the plight of former USA Today reporter Toni Locy (see page 26), whose confidential sources were sought in another Privacy Act lawsuit that has since been settled, Convertino in January asked Cleland to hold Ashenfelter in contempt and impose steeply escalating fines — starting at $500 a day for the first week he refuses to disclose his sources, $1,000 a day the following week, and $5,000 for each subsequent day.

But in papers filed in support of Ashenfelter’s invocation of the right against self-incrimination, asking the judge not to hold him in contempt, attorney Fink pointed out several potential crimes under which the reporter could be criminally prosecuted. Among them, Fink said: 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 violations of Michigan state laws that criminalize possession of stolen material.

Fink argued in his brief that if the Justice Department were to prosecute the person who leaked the details of the Convertino investigation, under any of the crimes listed, Ashenfelter could also be prosecuted secondarily for assisting in that leak.

Take the Espionage Act, for instance, Fink argued. Two lobbyists from the American Israel Public Affairs Committee were charged in 2005 with conspiring to violate the Act after they received information from a former Pentagon analyst and then shared that information with reporters.

The AIPAC officials were acting just like journalists would, Fink said, underscoring the possibility and likelihood that reporters could be prosecuted under the Espionage Act. (The AIPAC lobbyists, however, also shared their information with Israeli officials.) He also cited statements made by former Attorney General Alberto Gonzales that the Espionage Act could be used to prosecute journalists.

In support of his contention that Ashenfelter could be convicted, Fink pointed to statements made on a Web site, convertino.org (a blog run by Convertino’s wife Valerie), and in court documents — alleging that the reporter has acted criminally. To see Convertino, a former federal prosecutor with an understanding of criminal law, make these statements illustrates the realistic possibility of prosecution, Ashenfelter said.

Niehoff said that Ashenfelter’s invocation of the Fifth Amendment presented a clear-cut example of when taking that option is appropriate.

“[The Fifth Amendment] doesn’t apply in every case; it only applies in situations where the sharing of the information is a criminal act,” Niehoff said. “Here we have a former assistant U.S. attorney expressing opinion that what Ashenfelter has done does amount to criminal conduct. This is not an accusation that comes from an uninformed individual. This case is particularly persuasive.”

But Convertino’s attorney, Stephen Kohn, repeatedly argued in court papers that it was improper for Ashenfelter to invoke the right against self-incrimination. He called it “speculative” and “unreasonable.” Kohn argued that the statute-of-limitations period on some, but not all, of the crimes Ashenfelter says he could be prosecuted under has expired. Regarding the crimes that are not, Kohn said it is highly unlikely Ashenfelter will face prosecution since the Justice Department has already concluded its leak investigation.

Judge Cleland held a hearing in early February to decide whether Ashenfelter should be held in contempt. Department of Justice officials attended the hearing. When asked by the judge if they would consider charging Ashenfelter they did not give a definitive answer.

The judge did not decide the contempt issue at the hearing, but instead said he wanted to take the question “under advisement” and issue a written opinion. No ruling had been issued as of mid-February.

The Trend of the Fifth Amendment

For all of the legal back-and-forth and news coverage he received in the fall, Ashenfelter is not the first reporter to invoke the Fifth Amendment. Two journalists did so just last summer and were able to stay off the witness stand.

First, Jim DeRogatis, a reporter for the Chicago Sun Times, successfully invoked the Fifth in June when he was ordered to testify in singer R. Kelly’s child pornography trial. DeRogatis, a music critic, was in a unique position as the original recipient of the videotape at issue in the case, which prosecutors alleged depicted Kelly having sex with an underage girl. He received the tape in 2002, turned it over to the authorities and broke the news story.

When Judge Vincent Gaughan ruled at Kelly’s criminal trial that the First Amendment reporter’s privilege did not apply, DeRogatis invoked the Fifth Amendment. It worked — no immunity was granted and the judge did not order him to testify.

Shortly after that, Washington Times reporter William Gertz tried the same tactic in a federal court in California. The government had subpoenaed Gertz to testify about an article he wrote detailing the prosecution of a Chinese spy ring.

Gertz also did not end up having to testify, but it wasn’t because of the Fifth Amendment. Judge Cormac Carney did not decide whether the Fifth Amendment protected Gertz and instead ruled that Gertz was protected because the public’s interest in unfettered reporting outweighed the interest in forcing the journalist to testify.

But the strategy for reporters goes back much farther than that — a century ago, journalists invoked the Fifth Amendment to protect their sources. George Burdick was the city editor of the New York Tribune in 1915 when he was subpoenaed to testify before a grand jury about sources his newspaper used to report on a political corruption scandal.

Burdick refused to testify, invoking the Fifth Amendment.

In an attempt to force his testimony, then-President Woodrow Wilson pardoned Burdick, thus removing the possibility that Burdick would be convicted of a crime for testifying. The editor challenged the pardon all the way up to the U.S. Supreme Court.

In Burdick v. United States, the high court held that the pardon could be rejected and that Burdick thus would not have to testify. The ruling’s only legal significance has to do with a person’s right to reject a presidential pardon; but on a more symbolic level, the case illustrates the Supreme Court’s acceptance of a journalist’s refusal to testify based on the Fifth Amendment.

The Burdick case played out long before the Supreme Court dealt with the concept of a First Amendment-based reporter’s privilege. Almost 100 years later, as that privilege has risen and fallen in popularity among the courts, reporters are finding themselves making the same arguments Burdick did.

According to Niehoff, the use of the Fifth Amendment is related to the weakened First Amendment privilege. As more and more federal courts are refusing to find a reporter’s privilege, reporters and media lawyers are being forced to come up with different approaches.

The weakening of the privilege combined with the increase in subpoenaing reporters could lead to more invocations of the Fifth Amendment.

“We have a very muscular prior restraint doctrine that frustrates most government efforts to control news on the back end of things,” Niehoff said. “The government can only control news on the front end — by punishing people who leak information and the reporters who publish what they are told.”

He added: “When you have a government who attempts to restrain information in this way, this is the necessary argument reporters have to make.”