After a 90-minute hearing where attorneys debated whether a Detroit journalist can invoke the Fifth Amendment and not testify in a former federal prosecutor's civil suit against the government, U.S. District Judge Robert Cleland said he would issue a written opinion.
"It's complicated," said Richard Zuckerman, an attorney for David Ashenfelter, who writes for the Detroit Free Press. "The judge wants to think about it."
Zuckerman and Steve Kohn, a Washington D.C. attorney representing the former prosecutor, Richard Convertino, argued to Cleland much of what they stated in written briefs.
Convertino claims the Justice Department violated the federal Privacy Act when someone leaked Ashenfelter info about an investigation into Convertino's handling of a terrorist trial. Ashenfelter is battling a court order that says he must answer questions under oath from Convertino's lawyers. (See "Fighting Over the Fifth" and "Sword no shield".)
Cleland asked both attorneys questions to clarify their arguments and use of legal precedents. He also asked Elizabeth Sharpiro, deputy director of the federal programs branch of the U.S. Department of Justice Civil Division, to gauge the likelihood Ashenfelter could be criminally charged related to testimony he might give in a deposition.
Shapiro said it was difficult to assess that "hypothetical" situation but conceded the possibility of prosecution existed.
"There could circumstances. There could be an ongoing conspiracy. There could be aiding and abetting," Shapiro said.
Journalists have been held in contempt for not testifying in criminal cases, she pointed out, but this is a different matter.
"In criminal cases, the department has not shied away when necessary. Here we're in a civil case," Shapiro said.