Detroit Free Press reporter David Ashenfelter is appealing to the U.S. Court of Appeals in Cincinnati (6th Circuit) in hopes of protecting his confidential sources, before U.S. District Judge Robert Cleland can hold him in contempt for refusing to out them.
Ashenfelter is scheduled to be deposed on April 21 in former federal prosecutor Richard Convertino’s Privacy Act lawsuit against the government. Ashenfelter invoked the Fifth Amendment right against self-incrimination at a previous deposition in December; Cleland has ordered him to further explain his reasons for doing so.
In a motion filed Thursday, Ashenfelter’s attorney Herschel Fink asked the Sixth Circuit court to suspend Cleland’s ruling and hold that he is protected from testifying under the Fifth and First Amendments.
Fink argues that to require Ashenfelter to supply his reasons for invoking the Fifth Amendment would be to undermine the very protection the Amendment provides. The Fifth Amendment prevents a person from having to testify about matters that may incriminate him; Fink argued in the brief that it does not require the person to explain himself.
“This procedure turns the Fifth Amendment on its head, by requiring a witness to testify in public as to the facts he seeks to protect his Fifth Amendment assertions,” the brief argues. Furthermore, Fink says, requiring Ashenfelter to specify why he’s invoking the right against self-incrimination could constitute a waiver of that right, which could in turn prevent him from continuing to assert it.
The brief also outlines arguments Ashenfelter has made before: That if he were to testify about his sources he could subject himself to criminal prosecution for a variety of crimes, including conspiracy, theft and receipt of government information, and violation of the Espionage Act; and that a First Amendment-based reporter’s privilege should protect Ashenfelter from having to testify. Cleland rejected the First Amendment argument in August.
Whether Ashenfelter is privileged from testifying “is a highly debatable legal conclusion that ought to be vetted by this Court before Ashenfelter suffers incarceration for disputing it,” according to the brief.
An immediate appeal before the April 21 hearing is necessary, the brief continues, to avoid a “needless, expensive, and time-consuming procedure” of Ashenfelter testifying and invoking the same Fifth Amendment arguments he has already asserted.
If the Sixth Circuit does not take Ashenfelter’s appeal, and if he refuses to testify at the April 21 deposition, it is possible Cleland will hold the reporter in contempt.