Federal appellate court allows former prosecutor to investigate Detroit newspaper's government source

A federal appeals court allowed a former Detroit prosecutor to continue investigating the identity of a source who leaked information about an internal ethics probe against him to a Pulitzer-Prize winning newspaper reporter. The decision, which was released Friday, overturns a district court’s ruling that threw out the case last year and now leaves a newspaper vulnerable to investigations eight years after a U.S. Department of Justice insider leaked information to the reporter.

The U.S. Court of Appeals in Washington, D.C., found that former federal prosecutor Richard Convertino "submitted ample evidence to suggest that additional discovery could reveal the source’s identity,” Judge Karen LeCraft Henderson said on behalf of the court. The three-judge panel granted Convertino more time to make such a discovery, which would enable him to further his lawsuit against the Department of Justice by investigating other Detroit Free Press employees who may have knowledge of the whistleblower’s identity. Convertino is suing his former employer for not adequately protecting the confidentiality of private information about him.

In a legal battle that began in 2004, Free Press reporter David Ashenfelter successfully invoked his Fifth Amendment right against self-incrimination to avoid disclosing the identity of a confidential source who leaked information on which Ashenfelter relied to report on Convertino's alleged misconduct. But the Free Press, as a corporation, "enjoys no Fifth Amendment privilege,” the appellate court ruled.

“We continue to support Mr. Ashenfelter, and we will continue to do everything that we can to protect the confidential source relationship involved in this case,” said Herschel P. Fink, the newspaper's attorney. “This is just one more hurdle, but we’re continuing to wage the battle.”

Convertino led the high-profile prosecution of the first terrorism trial after the 9/11 attacks and won convictions for three of the suspected Detroit terrorists, but they were later overturned when a government investigation revealed that he had failed to disclose evidence to which the defense was entitled.

After Ashenfelter wrote about the government’s internal investigation into Convertino, who later resigned from his position, the former assistant U.S. attorney initiated a lengthy legal battle with his case, Convertino v. U.S. Department of Justice.

He sued the agency for damages for alleged violations of the Privacy Act, which governs federal agencies’ acquisition, maintenance and control of records containing information about individuals. It limits what information agencies may maintain about individuals, requires them to establish appropriate safeguards to ensure the confidentiality of records and restricts the agencies’ authority to disclose records.

However, courts have ruled that Privacy Act plaintiffs may only recover if they can identify the specific government employee or official who disclosed the private information to a person not authorized to receive it, instigating Convertino’s investigation into the identify of Ashenfelter’s source.

“The Justice Department’s policy of criminally investigating whistleblowers that ‘leak’ information, while at the same time aggressively defending its own ‘leakers,’ is hypocritical,” said Stephen M. Kohn, Convertino’s attorney, according to a press release posted on his firm’s website.

Ashenfelter relied on his Fifth Amendment right after unsuccessfully invoking the First Amendment-based reporter's privilege. Although Convertino's lawsuit was filed in Washington, D.C., a court in Michigan, where Ashenfelter lives and works, ordered the subpoena for his testimony. However, the U.S. Court of Appeals in Cincinnati (6th Cir.), the federal appellate court with jurisdiction over federal trial courts in Michigan, does not recognize the constitutional right.

“I think that if we had a federal shield law that was broad enough to cover Privacy Act actions, we wouldn’t have this problem,” Fink said. “I think the Ashenfelter case is certainly a great argument for the need to have a broad shield law.”

Convertino could not be reached for comment.

Related Reporters Committee resources:

· 6th Cir. – Privilege Compendium: I. Introduction: History & Background

· D.C. Cir. – Privilege Compendium