Former federal prosecutor Richard Convertino’s lawsuit seeking to discover who at the Department of Justice leaked information about an internal investigation of his conduct is coming closer to uncovering the source, according to a recent court filing.
On Jan. 15, the U.S. District Court for the Eastern District of Michigan ordered the Detroit Free Press to produce documents related to former reporter David Ashenfelter’s reporting on Convertino, who led a botched terrorism case a decade ago that ended his prosecuting career.
Convictions in the case led by Convertino were thrown out in 2003 amid allegations the prosecution had failed to disclose relevant information to the defense.
Ashenfelter reported in 2004 that Convertino had come under investigation by the department’s internal watchdog, the Office of Professional Responsibility, for his conduct. The Justice Department brought criminal obstruction of justice charges against Convertino, who was acquitted in 2007. Convertino sued the department for privacy violations related to the leak of the OPR investigation.
Ashenfelter had filed for a protective order in 2006 to protect his source or sources. In March 2011, Chief Judge Royce Lamberth of the U.S. District Court in Washington, D.C., dismissed the former prosecutor’s lawsuit. But the U.S. Court of Appeals in the District of Columbia in June reinstated the lawsuit.
Since the Jan. 15 order, the Free Press has produced more than 660 documents related to Convertino’s quest to discover Ashenfelter’s sources, including the reporter’s notes. In February, a representative of the Free Press sat for a deposition in the matter.
“We respect the court, and we also respect the public’s right to know and the protection of sources,” Free Press Editor and Publisher Paul Anger said in January. “Our legal fight continues.”
Among the documents produced by the Detroit newspaper was a series of emails from the Yahoo account of a person using the pseudonym “Joseph Berg.” ”Berg” emailed Ashenfelter on Dec. 15, 2003 about news of the OPR investigation, and in a follow-up email the next day, Ashenfelter asked, “What is the OPR probe focusing on?” Convertino’s March 8 filing said.
“Berg” answered, according to the filing: “My info on the OPR matter is that it centers on the failure to turn over evidence … and very basic prosecutorial misconduct.”
The Free Press also produced an automobile milegage expense report in which Ashenfelter sought reimbursement from the newspaper for $19.20 for making three trips from his home in Southfield, Mich., to Farmington Hills, Mich., to “meet with news source.”
Convertino was able to identify a former prosecutor in the Detroit U.S. Attorney’s office who lived in Farmington Hills and “was familiar with the facts related to the investigations of Mr. Convertino,” last month’s court filing said. Convertino’s attorneys said in the filing they were in the process of subpoening the now-former Assistant U.S. Attorney, who wasn’t named, and that the Justice Department has not objected to the former prosecutor giving a deposition.
In ordering the Free Press to produce documents, U.S. District Judge Robert H. Cleland said the newspaper’s First Amendment rights did not outweigh Convertino’s interest in pursuing his privacy claim. The judge also noted that Ashenfelter cannot be compelled to testify because he has invoked his Fifth Amendment right against self-incrimination.