Convertino and Ashenfelter still arguing over the Fifth

In court papers filed Wednesday, former federal prosecutor Richard Convertino called reporter David Ashenfelter’s invocation of the Fifth Amendment, in an attempt to keep from having to reveal his confidential sources, both “speculative” and “unreasonable.”

Convertino urged the federal district court in Michigan to sanction Ashenfelter and to require him to present further evidence as to why he should not be held in contempt for his refusal at a December deposition to reveal the confidential sources.

For the past two years, Convertino has been seeking Ashenfelter’s testimony in hopes of boosting his Privacy Act lawsuit against the Department of Justice. Convertino claims DOJ violated the law by leaking to the press details of an investigation into Convertino’s conduct during a terrorism trial.

At a deposition in December, after Judge Robert Cleland in the Eastern District of Michigan ruled twice that Ashenfelter is not protected by a First Amendment reporter’s privilege, the reporter invoked the Fifth Amendment right against self-incrimination.

Among the crimes that Ashenfelter could be charged with, his attorney Herschel Fink argues, are conspiracy for any crime committed by a government official; violations of the Privacy Act; perjury; false statements; obstruction of justice; theft and receipt of government records; violations of the Espionage Act; or Michigan state laws that criminalize possession of stolen material.

Convertino’s attorney, Stephen Kohn, replied in the brief filed Wednesday that many of the crimes that Ashenfelter cites are time-barred by the statute of limitations, which expired about a week before Ashenfelter filed the brief citing those crimes. Even though some of the crimes are not time-barred, Kohn said there was no “real danger” that Ashenfelter would face criminal prosecution for those crimes.

“That the government would now, more than four years after it deemed this matter closed, suddenly decide to prosecute Mr. Ashenfelter for crimes that no journalist has ever before been prosecuted is ‘fanciful’ at best,” Kohn argues in the brief.

Kohn’s brief also argues that Ashenfelter invoked the Fifth Amendment only as a way to stall the litigation and raise the costs imposed upon Convertino.

A hearing is set for Feb. 11 to determine if Ashenfelter will be held in contempt.