Free Press Reporter's Refusal to Reveal Source on Fifth Amendment Grounds Upheld

We have covered in a number of prior posts the saga of a former federal prosecutor's efforts to compel Detroit Free Press reporter David Ashenfelter to disclose the identity of a confidential source.  This story has had a number of interesting twists and turns, and last week's development was no different -- after hearing testimony from Ashenfelter in camera federal district court judge Robert Cleland upheld Ashenfelter's invocation of the Fifth Amendment privilege against self-incrimination, which means that Ashenfelter will not have to reveal his source.

As we previously reported, Ashenfelter first objected on First Amendment grounds to the third-party subpoena he received from the former prosecutor, Richard Convertino.  However, given that the civil proceeding in which the subpoena was issued is a federal matter, Ashenfelter could not use Michigan's shield law in seeking to protect the identity of his confidential source.  He argued instead that the information sought was protected under the common-law First Amendment privilege, citing Branzburg v. Hayes.  However, the court rejected this claim, holding that the Sixth Circuit, which includes Michigan, does not recognize the common-law privilege.

Ashenfelter was therefore required to sit for a deposition conducted by the Convertino's attorney.  However, rather than answer the questions he was asked, Ashenfelter invoked the Fifth Amendment privilege against self-incrimination.  He argued he feared prosecution because Convertino's attorney had made statements suggesting that Ashenfelter himself was criminally culpable by withholding the identity of a person Convertino claimed had violated the federal Privacy Act by revealing information to Ashenfelter about Convertino.  The former prosecutor them moved to hold Ashenfelter in contempt for refusing to answer questions about his confidential source.

After some legal maneuvering, this issue finally culminated in another hearing before Judge Cleland.  Cleland heard testimony from Ashenfelter ex parte -- outside the presence of Convertino's attorney -- and concluded that Ashenfelter's invocation of the Fifth Amendment privilege was warranted.  As a result, Judge Cleland held that Ashenfelter did not have to testify, and his source's identity, at least for now, remains secret and Ashenfelter is relieved of his obligation to sit for a deposition.  Judge Cleland set a May 5 deadline for Convertino to request reconsideration of the ruling.

Judge Cleland's decision was hailed by free speech advocacy groups.  This publicity this saga has garnered has also helped build momentum for passage of a federal shield law, as we have covered previously.  If Congress passes a federal law akin to most state shield statutes, a reporter subpoenaed in a federal matter will not have to prevail on a Fifth Amendment (or First Amendment) argument in order to protect his or her source.

Reporter Ordered to Sit for Second Deposition

In a new twist in a matter we have been following closely, a federal judge in Michigan issued a written ruling today ordering Detroit Free Press reporter David Ashenfelter to sit for a second deposition.  The judge released his decision just over two weeks after conducting a hearing on a motion to hold Ashenfelter in contempt for refusing to testify at his deposition in a civil lawsuit about a confidential government source who divulged information to him about the plaintiff.

As we first reported in December, this case is particularly interesting because Ashenfelter invoked the Fifth Amendment privilege against self-incrimination in an effort to maintain his source's confidentiality.  Traditionally, reporters rely upon state shield statutes or the First Amendment to protect their sources.  However, in this case no shield law was available to Ashenfelter because the matter is pending in federal court (a problem that will be remedied if Congress passes the federal Free Flow of Information Act this year), and the judge had previously rejected Ashenfelter's invocation of a First Amendment privilege against being compelled to disclose the identity of a confidential source.

The basis of Ashenfelter invocation of the Fifth Amendment -- and his response to the plaintiff's motion to hold him in contempt for refusing to answer questions under oath about his source -- was his fear that he could face criminal prosecution related to his source's actions.  The plaintiff had argued that the source violated the federal Privacy Act by disclosing information about the plaintiff to Ashenfelter and that Ashenfelter was aiding that crime by refusing to name the source.

After hearing the parties' arguments earlier this month -- including hearing from Justice Department officials who demurred as to whether Ashenfelter might face criminal prosecution -- the presiding judge ruled that he needs further testimony before he can resolve Ashenfelter's Fifth Amendment claim.

In his written decision, the judge explained that Ashenfelter should clarify the basis of his fears of criminal prosecution -- under oath.  According to the judge, when a question asked does not patently seek information that would tend to incriminate a witness (such as a question whether the witness committed a crime), then

the witness must present sufficient evidence such that the "court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution."  Above all, it is the witness's claim of the Fifth Amendment which controls, and therefore it is the witness who "must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution."

The court concluded that Ashenfelter had not carried his burden under this standard because he had refused to provide any testimony at all that would substantiate the basis of his claim of privilege.  In fact, in a footnote the Court stated that the transcript of Ashenfelter's deposition contains "many questionable invocations of the Fifth Amendment," as Ashenfelter had invoked the privilege in response to all but four questions he was asked.  Nor had Ashenfelter provided any other evidence concerning the nature of the criminal charge he feared.

As a result, the court could not "either validate or reject his asserted fear of prosecution" on the record as it currently stands.  The judge therefore ruled that Ashenfelter must re-appear for a deposition or give a personal statement under oath with respect to each question asked to indicate the nature of the criminal charge he fears.  The judge also ordered that the deposition take place in the federal courthouse "at a time that the undersigned judge is readily available to review and decide disputed objections."  The court also noted that in lieu of a second deposition, the parties could negotiate a solution, such as a detailed affidavit or an ex parte in camera review of Ashenfelter basis for asserting the Fifth Amendment privilege against self-incrimination.

We will continue to monitor the progress of this matter.

Contempt Hearing Held in Response to Reporter's Invocation of Fifth Amendment

As we reported in December, reporter David Ashenfelter of the Detroit Free Press refused to answer questions about a confidential source during his deposition in a civil lawsuit.  The move was noteworthy because Ashenfelter, who was not a party in the lawsuit, invoked the Fifth Amendment privilege against self-incrimination in refusing to give testimony.  His earlier attempt to protect his source under the First Amendment had been rejected by the federal judge presiding over the case.

The grounds for Ashenfelter's invocation of the Fifth Amendment privilege was his fear that he could be prosecuted criminally if his source were revealed.  The plaintiff in the lawsuit, who had sued the Justice Department under the federal Privacy Act, contended an unnamed Justice Department official committed a crime when he disclosed information about the plaintiff to Ashenfelter and that Ashenfelter was aiding that crime by refusing to identify the source.  The plaintiff does not contend the article Ashenfelter wrote about him was inaccurate, only that the government should not have shared information about him.

At the time, the plaintiff's attorney indicated he was considering asking the court to hold Ashenfelter in contempt for refusing to testify.  He in fact did so, and the court held a hearing Wednesday on that motion.  The plaintiff's attorney asked that Ashenfelter be fined up to $5,000 per day and that the Free Press be prohibited from reimbursing Ashenfelter for his payment of the fines.

In recent years, a number of reporters have been held in contempt for refusing to comply with subpoenas, with some incurring substantial fines and others spending time in jail.  Highly publicized cases involving contempt sanctions against reporters include the Valerie Plame investigation, the Wen Ho Lee lawsuit, and the Hatfill lawsuit

In the Hatfill case, USA Today reporter Toni Locy (and others) were subpoenaed in connection with a lawsuit Steven Hatfill -- like the plaintiff in the Ashenfelter matter -- brought under the Privacy Act against government agencies and officials for identifying him to journalists as a "person of interest" in the anthrax investigation.  Locy was found in contempt for refusing to reveal her source, but the case settled while that ruling was under appeal.

At the hearing on Wednesday, the presiding judge heard argument from Ashenfelter's attorney and the plaintiff's attorney.  He also requested that Justice Department officials appear and comment on the likelihood that Ashenfelter would be prosecuted for a crime.  When asked, these officials told the judge they could not say one way or the other whether Ashenfelter would face prosecution if he testified and revealed his source.

The judge did not rule on the contempt motion at the close of the hearing but rather will issue a written ruling in the coming days.  We will monitor closely the outcome in this matter.