Spin, spin, spin

By Joel Thurtell

The more you repeat a lie, the more it overwhelms the truth.

They know that maxim well at the Detroit Free Press.

It took four writers, two of them Puliltzer laureates, to put that old rule to use in the April 22 Free Press story about the latest development in Richard Convertino’s effort to obtain information from Free Press reporter David Ashenfelter. Convertino needs Ashenfelter to tell him the names of the federal prosecutors who illegally leaked personnel information about Convertino to the reporter as the lawmen paved the way for indicting their former colleague Convertino on charges of prosecutorial misbehavior.

A federal jury acquitted Convertino, who in the past four years has pursued the names of those employees of the Department of Justice who leaked his private information so he can collect damages from them for tarnishing his name and career.

The barrier to Convertino’s lawsuit was Ashenfelter, who steadfastly claimed a First Amendment right not to reveal the names of his sources. Problem was, leaking information about Convertino was illegal. Leaking the name of a Department of Justice confidential informant too was illegal. And it may have been illegal for the Free Press to print that information.

All of that information is contained in an opinion last August from U.S. District Judge Robert Cleland. A reading of that opinion is all one needs to understand that the following assertions in the latest triple-bylined Free Press story are false no matter how many times the paper repeats them:

First, Ashenfelter’s sources at Justice were not whistleblowers, as the Free Press suggests. They were Justice Department officials. Convertino’s complaint and Judge Cleland’s ruling make this clear. The whistleblower was Convertino, who claims his testimony before Congress so infuriated his bosses at Justice that they set about to ruin him.

Second, Judge Cleland did not rule that the U.S. Sixth Circuit Court of Appeals alone among appeals courts bans use of the First Amendment as a shield for journalists subpoenaed to testify. No matter how often the Free Press repeats this whopper, it will never be true.

In fact, while he discusses the Sixth Circuit, Judge Cleland concludes that the U.S. Supreme Court has ruled that nobody, including journalists, can use the First Amendment as a shield against testifying in a criminal matter. A journalist who witnesses crimes is required — as any citizen would be — to testify.

Third, it is not true that Convertino alone raised the potential for criminal action against Ashenfelter. You can’t take the Fifth for no good reason. When Judge Cleland allowed the reporter to take the Fifth, he made it clear that Ashenfelter might justifiably fear that he could be prosecuted. Revealing the name of a confidential informant in a newspaper article alone might be grounds for such a fear, since there are criminal sanctions available to punish such behavior.

Why does the newspaper keep hammering these stretchers? Because in order for Dave Ashenfelter to be a hero to journalists who propose a federal shield law, he must be a poster boy for the First Amendment. Therefore, as far as the Free Press is concerned, the reporter and by implication the newspaper are First Amendment heroes, even though the judge discarded the First Amendment as a shield.

It had to be a bitter pill for the Free Press staff and shield law advocates to swallow: The poster boy for the First Amendment testifying he was afraid he might be prosecuted.

His story revealed not only illegally-leaked personnel information about Convertino, but it also put into print the name of a confidential federal informant who, as a direct result of the Free Press article, was forced to flee from this country.

Shades of Valery Plame!

Yet the Valery Plame comparison has evaded journalists writing about this case.

Frankly, I think Ashenfelter was correct — he might have been prosecuted. He might still be charged. There is a law, called the Espionage Act, that prohibits revealing the kind of information he and the Free Press published.

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.

What have I learned from the latest twist in Ashenfelter-Convertino?

If you’re a federal prosecutor at or near the top of the feeding chain, you can break the law and get away with it.

If you’re a newspaper reporter, you can shield lawbreakers and not be forced to bear witness.

If your brand of journalism violated federal law in the course of reporting, so be it.

The rest of us mortals, placed in the same position, would have no choice but to give evidence.

This is not a shield we’re talking about. It’s a double standard.

Drop me a line at joelthurtell(at)gmail.com