Fifth Amendment, subpoena disputes persist in Detroit

Former U.S. prosecutor Richard Convertino is pressing ahead with his argument that Detroit Free Press reporter David Ashenfelter should not have been allowed to use the Fifth Amendment to protect the identities of his sources.

Convertino, who is seeking the names of Ashenfelter’s Department of Justice sources for a Privacy Act lawsuit,  filed a reply on May 26 to the reporter’s argument supporting his right to avoid incriminating himself.

Convertino claims it is too late for Ashenfelter to avoid incriminating himself, because he already admitted that his sources were DOJ employees, which alone could expose him to charges such as conspiracy for a crime committed by a government official. A witness cannot plead the Fifth Amendment to avoid giving details when he has already incriminated himself, Convertino asserts.

The new filing disputes Ashenfelter’s argument that Convertino had "waived his right to argue waiver," saying in fact the court has discretion to hear even arguments that were not previously raised.

Meanwhile, the Free Press is opposing Convertino’s attempt to obtain information from the newspaper and is seeking a protective order.

The newspaper has filed papers claiming the subpoena Convertino has requested is too broad; Convertino wants documents directly or indirectly related to every article published about him, when only one article is at issue.

The Free Press also argues that no one at the newspaper is better suited to testify on its behalf than Ashenfelter, who cannot be compelled to testify because he has successfully invoked the Fifth Amendment. No one else can fill in for Ashenfelter, the Free Press states, because none of the paper’s editors knows the identity of the sources.

U.S. District Judge Robert H. Cleland has given Convertino until Tuesday to respond to the Free Press‘ arguments.