By Joel Thurtell
I was disappointed when U.S. District Judge Robert Cleland ignored my advice that he appoint a special prosecutor to investigate the behavior of federal attorneys and maybe even the Detroit Free Press in producing a January 2004 story about criminal charges that had not yet been laid against then assistant U.S. attorney Richard Convertino.
Convertino eventually was tried and acquitted of prosecutorial misbehavior. He’s suing officials in the Department of Justice, but for his lawsuit to go forward, he needs to know the names of Justice officials who leaked confidential information to Free Press reporter David Ashenfelter, who wrote a story using the leaked information and by the way also put in print the name of a confidential federal informant.
For years, Ashenfelter claimed he had a First Amendment right not to reveal his sources. Last August, Judge Cleland ruled that Ashenfelter had no First Amendment protection against testifying. The judge cited a U.S. Supreme Court ruling that says nobody — not even journalists — can hide behind the First Amendment to keep from bearing witness to a crime.
The newspaper’s problem is that for its shield logic to work, it has to turn facts on their head. Normally, a newspaper protects sources who are underdogs — whistleblowers who might lose livelihoods or worse if their names are revealed. But in this case, the person the Free Press trashed with its story was Convertino, who contends his bosses at Justice were retaliating against him because he testified about their workings under subpoena to a Congressional committee.
In other words, the Free Press is protecting the persecutors, the people in power and not the underdog whistleblower.
Once Cleland dumped his First Amendment claim, Ashenfelter took the Fifth Amendment, claiming his testimony might lead to criminal charges against him.
After first denying Ashenfelter’s Fifth Amendment claim, Judge Cleland last week granted it. Ashenfelter didn’t have to testify or go to jail after all, and Convertino’s case looked dead.
But as I pointed out in blog posts beginning on December 8, 2008, Convertino has another option.
According to the Free Press ethics guidelines in force when Ashenfelter wrote his story, no reporter alone has the power to place an anonymously-sourced story in the Free Press. The reporter must have permission from editors up the feeding chain, and they must know the name or names the reporter’s sources.
I was delighted to learn that Convertino’s attorney, Steven Kohn, has taken my advice and filed a motion April 29, 2009 in U.S. District Court in Detroit asking that Free Press editors reveal the names of anonymous Justice sources who, according to the judge, illegally leaked confidential information to Ashenfelter.
Here’s the advice I posted in an April 27, 2009 JOTR column responding to the judge’s refusal to force Ashenfelter to testify:
What happens now?
I imagine Convertino will appeal. If I were in his shoes, I’d broaden my list of journalists who know the names of Ashenfelter’s sources. I’d subpoena everyone whose name was on the Free Press masthead back in January 2004 when the Free Press ran the Convertino story.
I noticed from the Free Press story that the paper’s two heavies — David Hunke and Paul Anger — were in the deposition room lending support to their reporter. In 2005, longtime Free Press owner Knight-Ridder sold the Free Press to Gannett and the top Free Press editors who may well know the names of Ashenfelter’s sources were given the bum’s rush. Hunke and Anger were placed at the pinnacle of the Free Press by Gannett. Do they know the names of the sources? Let’s find out: Subpoena them. too.
Looks like Convertino listened.
Who knows whether the judge will grant his motion.
But at least the Convertino case still has life.
Maybe my other piece of advice will come alive, too — that the judge appoint a special prosecutor to delve into how exactly the newspaper received the tainted information and what role federal prosecutors, reporters, editors and, yes, maybe even newspaper attorneys played in publishing a story based on confidential information that also revealed the identify of a confidential government source who, because of the newspaper report, was forced to flee the country.
Drop me a line at joelthurtell(at)gmail.com