Convertino case: Judge orders Free Press to name sources

By Joel Thurtell

Former assistant US attorney Rick Convertino’s lawsuit against the US Justice Department is still alive, despite a federal judge’s decision to let a Detroit Free Press reporter, now retired, off the hook as a witness in the ex-prosecutor’s federal whistle blower lawsuit.

Convertino is suing the Justice Department and Justice officials under the federal Privacy Act for disclosing to the Free Press secret grand jury information that he says destroyed his career.

Because US District Judge Robert Cleland allowed then Free Press reporter David Ashenfelter to invoke the Constitution’s Fifth Amendment protection against incriminating himself by naming names, Ashenfelter is a dead end as far as discovering who the sources were. Cleland on January 15, 2013 ordered the Free Press to turn over to Convertino Ashenfelter’s notes, including e-mails and electronic files, and to make further effort to find other current and former Free Press staffers who may know who Ashenfelter’s sources were.

On June 22, 2012, a Washington, D.C. appeals court panel ruled that Convertino is entitled to pursue discovery in his Privacy Act lawsuit against the Department of Justice.

US District Judge Robert Cleland on January 15, 2013 ordered the Free Press to produce documents related to the Free Press sources and to provide a company witness to testify about Ashenfelter’s sources.

As a consequence of the judge’s order, the newspaper offered free legal services to four current and six former staffers who, the newspaper contends, may know who the reporter’s unnamed sources were.

In a January 28, 2013 e-mail memo, Free Press publisher Paul Anger asked the current and former Free Press editors if they knew the source or sources for then Free Press reporter David Ashenfelter’s January 17, 2004 Free Press story, “Terror Case Prosecutor is Probed on Conduct: Outcome of Investigation Could Give The Defendants a New Trial.”

The “terror case prosecutor” in the paper’s headline was Convertino, who had earlier filed a whistle blower lawsuit against the government. The civil suit was put on hold after the US Justice Department charged Convertino with obstruction of justice. A jury took four hours to acquit Convertino on October 31, 2007, whereupon he revived his civil lawsuit against the government.

The Obama Justice Department is prosecuting other government leakers aggressively. For example, a CIA leaker has been sentenced to prison. Lewis “Scooter” Libby was convicted in the Valery Plame leak case. For some reason, Obama’s minions aren’t breathing down the necks of Ashenfelter’s leakers.

In a December 8, 2008 column, I quoted from the Free Press policy on confidential sources in effect in January, 2004: “If a demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a department head or higher editor before a commitment is made.”

In that column, gave this advice to Richard Convertino:

Dave Ashenfelter wasn’t the only one at the Free Press who knew the names of his federal sources. Why don’t you subpoena the people who edited his story?

I had some advice for Dave Ashenfelter, too:

It’s not too late, Dave — get a second legal opinion.

If Dave had sought other advice, he might not have had to invoke the Fifth Amendment to avoid incriminating himself.

A key question now is whether any of the 10 present and former Free Press staffers Anger queried was “a department head or higher editor” when the Free Press published Ashenfelter’s story.

The January 28 memo from Paul Anger is titled  “Court Order to Reveal Source(s).” It states:

As you may know, the plaintiff in Convertino v. United States Department of Justice, et. al, a civil case pending in federal court in the District of Columbia, is suing the Justice Department because he claims it violated the Privacy Act when it allegedly disclosed information about him to the Free Press. As part of his litigation, Convertino needs to find the person who gave secret grand jury information to the Free Press. The Free Press is not party to the litigation.

As part of the litigation, Convertino subpoenaed the Free Press, demanding information concerning the identity of a confidential source(s) for a January 17, 2004 article in the Free Press headlined “Terror Case Prosecutor is Probed on Conduct: Outcome of Investigation Could Give The Defendants a New Trial. The article is attached.”

“We opposed the subpoena but were recently ordered by Judge Robert H. Cleland to designate a corporate representative who can testify with regard to whether there is a current or former employee who knows the source’s identity.”

“In July 2006, you received a memorandum from the Gannett Law Department asking whether you knew the identity of the person(s) who provided, commented on, or confirmed the information attributed to ‘Just Department officials” in the article. You were instructed to contact a Gannett Law Department representative if you had such knowledge. You did not respond and the newspaper consequently concluded that you had no knowledge of the source’s identity.”

“In light of Judge Cleland’s recent order, I am responsible once again to inquire whether you have that information, i.e. whether you know that names of sources of information about Mr. Convertino in the article that appeared in the January 17, 2004 edition of the Free Press, and what information each such source provided to the newspaper.

If you have such information, especially considering the lengthy history of this litigation and the personal interests at stake, you may want to consult with a personal attorney who can advise you in this matter. In that respect, the Free Press has engaged Lee Levine, Esq. to be available personally to advise you (or any current or former employees) who wishes personal legal advice in this matter. Mr. Levine is copied on this message.

“The newspaper will pay for legal services rendered to you by Mr. Levine.

“If you do not know the name of the confidential source for the January 17 article or the information he or she provided, please confirm that fact in a reply email.

“If you do know that information, please send me a reply e-mail stating ‘yes.’ If you do that, we will follow up with you for more detail.

“Finally, because of a Court-imposed deadline, please respond to this message or contact Mr. Levine no later than 5 pm on January 28, 2013.”

JOTR note: the time on the Anger memo was 3 PM — two hours before the deadline. As a result, the deadline was extended to January 31.

On February 15, Paul Anger was deposed by Convertino’s attorney. Learn what the top manager of the Detroit Free Press said about use of confidential sources at the Free Press in a forthcoming JOTR column.

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