Focus of source fight shifts to newspaper

From the Summer 2009 issue of The News Media & The Law, page 25.

Richard Convertino, the former prosecutor who is suing the Department of Justice over a controversial terrorism prosecution and subsequent investigation, is still pursuing the Detroit Free Press for confidential sources.

Though Free Press reporter David Ashenfelter has been successful so far in invoking the Fifth Amendment to protect his confidential sources, Convertino is not ready to give up.

The former assistant U.S. attorney is now going after the newspaper by asking a federal judge to compel the Free Press to turn over 12 years’ worth of Ashenfelter’s notes, sources and stories.

The Free Press has argued in court filings that the editors don’t know who Ashenfelter’s source is and don’t have the authority to turn over Ashenfelter’s notes. But Convertino has argued that the newspaper owns Ashenfelter’s work product and thus is obligated to hand it over.

Now it’s up to Judge Robert Cleland, the federal judge in Detroit overseeing the case, to make the call. Both sides were awaiting his decision this summer as to whether he’ll compel the Free Press to give up Ashenfelter’s notes and sources.

“This may be a desperation tactic,” said Ashenfelter’s attorney, Herschel Fink. “Clearly it’s the reporter who typically knows who the source is.”

Involving the Free Press

Convertino was an assistant U.S. attorney in Detroit when he prosecuted the first terrorism trial after the Sept. 11, 2001 attacks. Though he won convictions for three defendants, the case unraveled when new evidence came out that the defense argued established the defendants’ innocence.

The government alleged that Convertino had violated federal rules by failing to turn over the evidence to the defense, and the Justice Department began an internal investigation into his alleged misconduct. Convertino, who had been called to testify before Congress about the government’s anti-terrorism tactics, denied wrongdoing and argued that the government’s investigation was retaliation for his congressional testimony.

Meanwhile, Ashenfelter was following the situation and relying on confidential government sources to report on it.

In 2006, Convertino sued the Justice Department under the Privacy Act for leaking information about the investigation to the press. To bolster his claim, he subpoenaed Ashenfelter and the Free Press for the identities of the confidential news sources.

Since then, as his case has plodded along in court, Convertino has focused his efforts on Ashenfelter. In response, Ashenfelter first argued that the First Amendment gave him a privilege against having to testify. When Cleland ruled that no such First Amendment-based privilege was recognized in federal court in Michigan, Ashenfelter argued that he was protected from testifying under the Fifth Amendment right against self incrimination. If he were to testify about the source of the leak, Ashenfelter testified, he could be prosecuted under a myriad of charges, including the Espionage Act.

Cleland ruled in April that the Fifth Amendment indeed protected Ashenfelter from having to testify. Shortly after the ruling, Convertino reinstated his fight against the editors for the information and sources. He filed the motion to compel the Free Press to give up the reporter’s notes and sources, which is now before Cleland. How the judge settles the matter may come down to determining ownership of a journalist’s work materials.

Who owns the notes?

Convertino has argued in his latest court filings that the Free Press owns Ashenfelter’s notes, knows the identity of his sources, and has the authority to turn over the information. But the newspaper counters that the notes are the property of the reporter, and that only Ashenfelter knows the identity of his sources.

University of Michigan law professor and media lawyer Len Niehoff, who is not involved in the case, explained that who owns Ashenfelter’s notes is unclear. Litigation discovery rules require corporations to keep e-mail messages and electronic notes on file when a suit is imminent, but that does not mean the notes are the property of the corporation, he said. Also, Ashenfelter’s notes might not be saved electronically on office computers or office e-mail, anyway.

“If something is maintained on a reporter’s home e-mail, but is maintained in order for them to do their job, is that within the possession custody or control of newspaper?” Niehoff asked. “I don’t know. But if the newspaper said to the reporter, ‘print those e-mails and bring them in,’ then it might be.”

But, Niehoff added: “There is an argument that can be made, that when you get into privileged material, the reporter may choose to keep the information highly confidential, and not share it with editors.”

In court papers, Free Press attorneys argued that the newspaper is obligated to turn over the material only if it is within its “possession, custody or control.” Ashenfelter’s notes are not in the control of the newspaper, the attorneys argued, and further, Ashenfelter did not share his sources’ identities with those editors.

“The documents exclusively within Mr. Ashenfelter’s possession, however, are not even theoretically within the paper’s ‘control’ because Mr. Convertino has not shown that they are materials kept by the institutional Free Press in the regular course of its business,” a brief filed by the Free Press argued.

Convertino’s attorneys, however, cite copyright law in arguing that Ashenfelter’s work product belongs to the Free Press. They also cite an internal Free Press policy that reporters are obligated to inform editors of the identities of any confidential sources. Fink countered that the policy was not in place when Ashenfelter was reporting about Convertino.

Luckily for Ashenfelter, the Free Press has backed him up and continues to fight to protect Ashenfelter’s work product. A few years ago, another reporter wasn’t so lucky: When Matt Cooper of Time magazine was subpoenaed for the confidential source he used to write about the leaking of CIA agent Valerie Plame, his employer gave up the information even as Cooper had been trying to protect it.

Both Cooper and Time were held in contempt in 2005 for refusing to reveal the source who leaked Plame’s identity. After all the appeals were exhausted, Time announced it would comply with the subpoena by giving Cooper’s notes kept on a company computer and e-mail messages to the special prosecutor on the case. In a statement defending the company’s decision, then-Editor-in-Chief Norman Pearlstine said the magazine had been committed to fighting the subpoenas, but when all of the appeals were exhausted the company felt like it had little choice left.

“The same Constitution that protects freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments,” the Time statement said.

Who is protected by the First and Fifth Amendments?

Ashenfelter has argued that both a First Amendment-based reporter’s privilege and a Fifth Amendment right against self-incrimination protect him from having to testify in Convertino’s case.

Niehoff explained that a newspaper has the same First Amendment-based privilege to protect the source material as a reporter.

“The lynchpin of any reporter’s privilege can’t turn on the title ‘reporter’ or ‘journalist’; it’s too vague and an undisciplined way to think about it to be useful,” Niehoff said. “We want to protect the process. If the goal is to protect the free flow of information, then that protection should extend in all directions necessary.”

Whether a Fifth Amendment privilege extends to the Free Press is a trickier question. Niehoff said that if Ashenfelter had committed a crime by interviewing the source of the leak, then his newspaper editors may have also committed the crime of conspiracy by working with him in the editorial process. But it hasn’t been addressed by any court.

If Cleland rules that the newspaper must turn over the documents, and the newspaper refuses to turn them over, he could hold the Free Press in contempt. Instead of hauling any single person off to jail to serve a contempt sentence, Niehoff explained that the judge would probably fine the newspaper on a daily basis. Judges have awarded some pretty large fines in similar cases, such as the escalating fines of up to $5,000 a day that former USA Today reporter Toni Locy faced when she fought to keep secret the confidential source she used in reporting on the anthrax investigations. Because a corporate newspaper has deeper pockets than a reporter, Niehoff said the paper could face an even larger fine.

But, for now, Fink said, “We’re waiting for the judge.”