By Joel Thurtell
If somebody offered me a fifth of my favorite single-malt Scotch, I’d take it.
But I hope I never have to take the fifth the way ace Detroit Free Press reporter David Ashenfelter took it on December 8, 2008.
Ashenfelter invoked the Fifth Amendment to the U.S. Constitution during his deposition in Ann Arbor by an attorney for former assistant U.S. attorney Richard Convertino. Ashenfelter also called on the First Amendment to protect him from having to name the federal prosecutors who leaked confidential information to him for a story he wrote and the Free Press published on January 17, 2004 about Convertino.
Now I hear people puzzling about why a reporter used the Fifth when it’s customary for journalists in this situation to call on the Constitution’s First Amendment free speech and free press guarantee.
The answer is straightforward, though you won’t read it in the Free Press: This case is not about freedom of the press at all. It’s about whether a reporter — any more than other citizens — has the right to withhold information about possible criminal activity.
You would not understand that from reading the top of the December 9, 2008 Free Press story, though:
For 50 minutes through scores of questions, Detroit Free Press reporter David Ashenfelter declined under oath Monday afternoon to reveal confidential sources in a legal standoff that pits journalistic principles against the obligation to testify under court order.
Convertino is suing the U.S. Justice Department, claiming his former bosses violated the federal privacy act by leaking harmful information about him shortly before they indicted him on criminal charges of obstructing justice in a case he prosecuted. He thinks the Justice Department higher-ups wanted to damage his reputation and bias potential jurors. But a jury eventually acquitted him.
Convertino has claimed the feds were out to get him in retaliation because he’d criticized the Justice Department for failing to provide him with adequate support in a high-profile case he prosecuted against two supposed wannabe terrorists whose convictions later were overturned.
His whistle-blower case is a civil suit seeking monetary damages from the government. To proceed, though, he needs the names of the Justice Department officials who gave Ashenfelter the information for the Free Press story that preceded the government’s indictment and later trial of Convertino.
An internal Justice Department investigation of the leak turned up the names of some 30 employees who could have talked to Ashenfelter. All of the potential perps have signed statements denying they were the newspaper’s source. Why the government wouldn’t pursue the matter further, perhaps requiring the suspects to submit to polygraph tests, I don’t know. But Convertino is seemingly left with only one other source — the reporter.
As I pointed out in my December 8, 2008 column, Ashenfelter likely is not the only one at the Free Press who knows the names of his sources for the Convertino story. According to the Free Press ethics policy of the time, reporters could not unilaterally grant anonymity to sources. They needed editors’ permission. There were others at the Free Press in 2004 who should have known who the sources were, if they were behaving responsibly and according to their own operating rules. And though in the meantime the Free Press has changed ownership, I suspect there are editors today, too, who know the names of Ashenfelter’s sources.
Why doesn’t Convertino subpoena Dave’s bosses?
Let editors take the fifth.
Hey, maybe they could take Dave’s place in jail, if that’s what the judge orders and the bosses, like Dave, refuse to talk.
But there is a profound irony in the First Amendment aspect of this case, given that Ashenfelter is invoking a constitutional right that Free Press higher-ups have claimed he doesn’t have.
I learned this back in 2007, when The Newspaper Guild grieved the discipline I received for donating $500 to the Michigan Democratic Party in 2004. I’d violated no Free Press ethics policy, nor had I broken the “professional integrity” rule in the Free Press-Guild contract. But Free Press bosses — who themselves made political contributions — decided what I did was a no-no and prohibited it in future. During my case, which the Guild won for me earlier this year in arbitration, the Free Press argued that employees of private companies like the Free Press don’t have First Amendment rights.
I’ll say it again: Official Free Press policy holds that reporters, photographers and indeed ALL Free Press employees lack the fundamental right of free speech.
What a spectacle: The bosses send a reporter to enforce a First Amendment right they claim he doesn’t have!
Ain’t that cute?
But here’s the nut of the story, which the Free Press has studiously avoided: According to U.S. District Judge Robert Cleland, the behavior of those Justice Department employees who leaked to Ashenfelter may have been criminal and they might be prosecuted. What’s more, if those who leaked to the newspaper lied in their signed denials, that is perjury, also a criminal matter.
Here’s what Judge Cleland wrote in the August 28, 2008 ruling that ordered Ashenfelter to testify:
The biggest factor counseling against disclosure is harm to Ashenfelter’s First Amendment interests. Virtually every case in which a court compels a reporter to disclose a confidential source implicates at least some risk, direct or otherwise, that news gathering activities protected by the First Amendment may be hindered…However, this generalized danger is minimized in this case, as the anonymous DOJ officials may well have violated federal law by communicating with Ashenfelter as to these matters. If the informants indeed violated the Privacy Act as Convertino alleges, potential sources of further similar violations should be deterred from interactions of this kind with representatives of the press. This is not an instance where the reporter’s informant reveals hitherto unknown dangerous or illegal activities that, being unlikely otherwise to come to light, result in reporting that is obviously more weighty in a court’s calculation of First Amendment safeguards. Rather, this situation is more akin to a reporter’s observation of criminal conduct, from which the Supreme Court has explicitly stripped constitutional protection: “we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime that to do something about it.”
For similar reasons, any reliance Ashenfelter placed on the Michigan reporters’ privilege is misplaced. A reporter should not be allowed to use a state law to shield himself from disclosing his sources when the communication sought to be protected is a violation of federal law. Such reliance should not be encouraged by the court. Thus, the burden on Ashenfelter’s First Amendment interests is minimal and the damage to his reliance on the Michigan shield law inconsequential.
In other words, if I were witness to a crime, could I invoke the free speech amendment to prevent giving evidence against a suspected criminal? Where would be the justice in that?
Why protect people who may be criminals? Why not just turn over the names and be done with it? Why all the First Amendment grandstanding when the newspaper is in fact behaving as a shield to potential criminals?
Earlier, I suggested it might be self-delusion or maybe industry-wide delusion. This case, badly distorted with biased reporting, fits into a wider media agenda aimed at persuading politicians to enact a federal law to shield reporters from giving testimony.
A reader emailed a darker suspicion. It may seem far-fetched, but here it is:
What if somehow Convertino got, through Ashenfelter or his editors, the names of the leakers? What if those people were criminally charged?
I admit, it’s very unlikely. But there’s a new administration coming in, a new Attorney General. Stranger things have happened.
Now, what if the newspaper’s publication of the leaked material were construed as — gasp! — conspiracy to further a crime? In other words, prosecutors might claim a newspaper was aware it was letting Justice Department officials use the paper as a tool to harm a person’s reputation and weaken a person’s public image before trial. After all, without Free Press publication, the leak would likely not have become known.
What if, again in theory, the feds who were charged, or others who might be subpoenaed, gave evidence at trial showing that a newspaper routinely conspired to publish illicitly-divulged information, knowing publication would damage people’s reputations before indictment, making it harder to find jurors who would be impartial? Why, maybe there was even a quid pro quo in which the newspaper published ill-gotten info in return for other hot but illicit tips — the scoops that make reporters’ careers and sell papers. Hey, remember all those Free Press stories last summer about the feds probing Detroit City Council members for corruption? How’d the paper get those tips? How’d they get the Kwame Kilpatrick text messages, legally off limits to the public?
What if the evidence began pointing not to just one newspaper, but to several media outlets like radio, TV, maybe even Internet — that receive improperly-released information? What if it turned out that news organizations all over the country were playing this pernicious game of trashing people in return for selling papers and winning journalism awards?
In the highly improbable event that a criminal prosecution would spread through a newsroom or go viral in a multi-media fashion, the Fifth Amendment would sure be an appropriate shield against journalists’ self-incrimination.
Drop me a line at joelthurtell(at)gmail.com.
