Ashenfelter wrote in 2004 that former assistant U.S. Attorney Richard Convertino was the subject of an internal investigation for his actions during a discredited terrorism trial.
Ashenfelter claimed the protection of the Fifth Amendment, which protects against self-incrimination, in 2009. Although his editors said he had done nothing wrong, he used the Fifth Amendment because Convertino argued the leak of information by the Department of Justice was illegal. Although a judge had earlier upheld Ashenfelter's position, Convertino claimed the Fifth Amendment argument was no longer valid after Attorney General Eric Holder said, in an unrelated matter, that journalists would not be prosecuted for doing their jobs. The court rejected that argument.