For the third time, U.S. District Judge Robert Cleland has ordered Detroit Free Press reporter David Ashenfelter to testify in a former federal prosecutor's civil suit against the U.S. Department of Justice.
In an order issued Thursday, Cleland rejected Ashenfelter's argument that testifying about his sources for a 2004 article that revealed an internal investigation into the former prosecutor's conduct could violate the reporter's Fifth Amendment rights against self-incrimination. Ashenfelter offered that argument at a December deposition, where he refused to testify beyond giving his name. His attorneys have argued that his testimony could lead to prosecution under federal statutes, including the Espionage Act, that "criminalize the improper receipt and distribution of confidential documents and information."
But Cleland said in his latest ruling that Ashenfelter hadn't given any evidence that allowed the judge to determine the legitimacy of his fear of prosecution resulting from his testimony.
"Ashenfelter's counsel ... has ushered forth an imaginative parade of horribles — a list of crimes for which, he suggests, Ashenfelter could face prosecution. But arguments alone, lacking distinct factual underpinnings, do not present the kind of 'concrete information' that allow the court to analyze the legitimacy of the witness's claim of privilege," Cleland wrote.
Cleland, however, declined to hold the veteran reporter in contempt — which could result in jail time or the fines of up to $5,000 a day that the plaintiff has asked be levied.
Free Press attorney Herschel Fink was not available for comment following Cleland's opinion.
At a recent Society of Professional of Journalists Detroit Chapter forum on the issue, somewhat light-hearted discussion included where Ashenfelter might be incarcerated if found in contempt: the Wayne County Jail, a federal facility? We're betting Ash is getting more serious support from his colleagues after Cleland's order this week.
The judge ordered the parties to decide by March 6 when the deposition will be. Cleland will be present during the deposition to review objections.
The plaintiff, former prosecutor, Richard Convertino, is suing the justice department, alleging his civil rights guaranteed by the Privacy Act were violated when someone — or ones — told or gave documents to Ashenfelter about the investigation into Convertino's conduct. His attorney, Steve Kohn, has said Convertino cannot win his lawsuit without knowing the identity of Ashenfelter's source(s).
He was not available for comment following Cleland's opinion this week.
Convertino prosecuted the first terrorism trial after 9/11, garnering convictions in mid-2003 against three of the four men charged. But at the end of that year, the trial judge ordered a review of the court file after learning documents the prosecution had were not turned over to the defense.
Ashenfelter's article appeared a month later, describing a federal investigation into Convertino's conduct, including possible ethical violations.
The terror trial convictions were later overturned. Convertino resigned as an assistant U.S. attorney. He was later charged and acquitted of withholding evidence from defense attorneys and allowing false evidence at the 2003 trial.