An appellate decision on the long-running dispute between a former prosecutor and the Department of Justice may provide a new way for journalists to protect their government sources. The decision came as a result of former prosecutor Richard Convertino’s effort to sue DOJ for Privacy Act violations tied to a 2004 leak to Detroit Free Press reporter David Ashenfelter, who reported that Convertino was under investigation by DOJ’s Office of Professional Responsibility for misconduct on a terrorism trial.
There are no heroes in the underlying suit. Convertino claims DOJ investigated him not for prosecutorial misconduct, but instead to retaliate for criticism of their conduct under the “war on terror” and testimony provided under subpoena to Congress. … But Convertino’s alleged conduct — withholding evidence from defense attorneys — was also inexcusable.
The dispute has sucked Ashenfelter up in a long-running fight over whether he should have to testify about his sources. He first tried to refuse by invoking reporter’s privilege, which a judge rejected. But when, in 2008, Convertino tried to depose the reporter, Ashenfelter invoked the Fifth Amendment privilege against self-incrimination in response to each question.
To defend doing so, Ashenfelter pointed to Convertino’s own claims that he had conspired with criminals at DOJ, as well as to a series of cases (including those under the Espionage Act) and public statements suggesting DOJ might prosecute someone for using documents illegally obtained from the government to do reporting.
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