The U.S. government’s recurring threats to prosecute journalists who receive classified documents may have created an avenue for some reporters to evade testimony at least in civil cases by asserting a Fifth Amendment privilege against self-incrimination, says Marcy Wheeler.

By Marcy Wheeler

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.

On Friday, the Sixth Circuit upheld Ashenfelter’s right to invoke the Fifth Amendment to refuse to testify. The key part of the Sixth Circuit’s ruling found that Ashenfelter had a real concern that any testimony about the leak would implicate him in federal crimes; in his opinion, Judge Eric Clay pointed to 18 U.S.C. § 641 , which prohibits receiving something known to have been stolen with the intent to use it for one’s own gain:

“Convertino’s complaint in his merits suit against the DOJ alleges facts that if proven could implicate Ashenfelter in the commission of one or more crimes, including the allegation that federal officials illegally provided Ashenfelter with two confidential OPR documents. If proven, this allegation would appear to establish that Ashenfelter ‘receive[d]’ a ‘record . . . of the United States or of [an] agency or department thereof,’ raising a risk of prosecution under 18 U.S.C. § 641.

“In this setting, it requires very little ‘judicial imagination,’ if any, to comprehend that Ashenfelter could have reasonable cause to fear that answering questions regarding the source or sources of the leak would risk injurious disclosure.

Effectively, the court agreed that it would be possible for a journalist to be charged because he knowingly used government documents that had been stolen to do reporting, and therefore Ashenfelter could properly rely on the Fifth Amendment privilege to avoid testifying.

That conclusion is not surprising given that DOJ has considered similar charges against Julian Assange and the UK is still considering charges against journalists who have been working with documents provided by former National Security Agency contractor Edward Snowden.

If the decision stands, it may present a new way for journalists to protect sources in civil cases, at least in Michigan, Ohio, and Kentucky, where the decision will stand as precedent.

It wouldn’t offer much protection in criminal cases, because prosecutors could always give the journalist immunity to testify against sources. But it does represent an important recognition that in an era of witch hunts like that launched against James Risen, where even Judge Leonie Brinkema observed the prosecution would have liked to name Risen as a co-conspirator, journalists may have additional legal reasons to want to protect their reporting, beyond just a reporter’s privilege.

Investigative journalist Marcy Wheeler writes the “Right to Know” column for ExposeFacts, where this article first appeared. She is best known for providing in-depth analysis of legal documents related to “war on terrorism” programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon and the Progressive. She is the author ofAnatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog journalism.