Shielded in secret?

Detroit Free Press reporter David Ashenfelter wants to tell a federal judge why he fears prosecution if he testifies in a civil lawsuit about his confidential sources for a 2004 article about a Justice Department investigation.

As long as his reasons remain secret, that is.

In a motion filed Tuesday — a few hours after Metro Times went to press — Ashenfelter offered to provide U.S. District Judge Robert Cleland with a confidential affidavit detailing how he could be incriminating himself if he discusses his unnamed sources. In previous court filings, Ashenfelter has said he fears possible prosecution under the Espionage Act and other federal laws if he testifies.

Cleland three times has ordered Ashenfelter to give a deposition in the case of former federal prosecutor Richard Convertino, who is suing the U.S. Department of Justice. Convertino, now in private practice in Plymouth, says his civil rights were violated by leaks to Ashenfelter that were the basis for his article about an investigation into Convertino’s conduct in a terrorism-related trial.

Convertino can’t win his civil lawsuit without knowing who gave Ashenfelter the information, according to his lawyer. Convertino’s attorney, Stephen Kohn, says no other witnesses deposed in Convertino’s case have admitted to being the sources.

Ashenfelter and the Free Press have doggedly fought Cleland’s efforts to force the reporter’s testimony. They first argued “reporter’s privilege,” enabling him to protect the confidentiality of sources. But Cleland rejected that argument, noting the Sixth Circuit Court of Appeals in Cincinnati, the next court above Detroit’s U.S. District Court, is nearly unique among federal jurisdictions in not recognizing that privilege.

Then at a December deposition, Ashenfelter invoked his Fifth Amendment right against self-incrimination and refused to answer most questions posed, including any about the article.

Cleland rejected that argument, but he did say in a written opinion last month that Ashenfelter’s “refusal to answer may be upheld where the witness has reasonable cause to apprehend a real danger of incrimination.” At the same time, the judge also opened the door for Ashenfelter to communicate his detailed concerns about prosecution in private.

Ashenfelter, in his motion filed Tuesday, says his affidavit “will provide factual information that supports [his] reliance on the Fifth Amendment privilege in response to the questions that Convertino has already asked.”

Convertino’s attorney called Ashenfelter’s request “more of the same.”

“There’s no valid Fifth Amendment privilege. We’re going to study how to respond,” Kohn says.

Ashenfelter and Convertino were to have set a date for another deposition by Friday, but Ashenfelter is asking Cleland to delay that deadline while the judge considers viewing a confidential affidavit from the reporter.


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