A former prosecutor who was acquitted on obstruction charges wants a federal appeals court in Washington to restart his privacy suit against the U.S. Justice Department over allegations the government leaked information to a reporter.
The U.S. Court of Appeals for the D.C. Circuit today heard argument in the dispute for nearly an hour.
Richard Convertino filed a privacy suit in Washington over the alleged DOJ leak to the Detroit Free Press. The newspaper in 2004 wrote about the government’s ethics investigation against Convertino stemming from his role in a terror-related prosecution.
Convertino contends in U.S. District Court for the District of Columbia that the DOJ leak was retaliation for earlier congressional testimony about the lack of prosecutorial resources in terror-related cases.
A Washington federal trial judge last May dismissed Convertino’s suit, saying he was unwilling to allow the civil case to drag on any longer. Chief U.S. District Judge Royce Lamberth noted in his decision that Convertino, after seven years of litigation, “is no closer to answering the most basic question of all: Who done it?”
Lamberth said “pared down to essentials, this case is the simple story of Richard G. Convertino’s unsuccessful quest to unmask the leaker of his private information.”
Convertino’s lawyer, Stephen Kohn of Washington’s Kohn, Kohn & Colapinto, said in court today that Convertino “acted diligently in trying to obtaion those facts. That was uncontested, and the district court noted he had undergone a monumental effort.”
Kohn had asked Lamberth to stay the proceedings in Washington while a parallel and related effort was underway in Detroit federal district court to get information from the Free Press and a reporter named David Ashenfelter.
Kohn today urged the D.C. Circuit panel—judges David Tatel, Karen LeCraft Henderson and Judith Rogers—to reject Lamberth’s refusal to stay the proceedings. Kohn argued against Lamberth’s conclusion that additional time would not benefit Convertino. A trial judge in Michigan has not ruled on Convertino’s renewed motion to compel the Free Press to turn over information, Kohn said.
A Justice Department appellate lawyer, Samantha Chaifetz, said the Free Press has consistently asserted it does not have the information Convertino wants. Chaifetz also noted that a lengthy internal DOJ probe did not reveal the identity of the leaker.
Tatel expressed concern about the potential lack of evidence on which Lamberth made his finding about the futility of keeping the case going. The Free Press, Tatel noted in court, has never answered under oath whether it does not have the name of the person who leaked information to Ashenfelter.
“You would agree that a judge abuses his or her discretion if the judge enters order on reason that is not supported in the record,” Tatel said to Chaifetz during one exchange.
Chaifetz said Convertino must offer more than speculation that the Free Press is in possession of information that will help his prosecution of his civil Privacy Act claims in Washington.
“There was extensive discovery, years of discovery,” Chaifetz said in court. “And each time he ran up against the same wall of being unable to find the information that he sought.”
“That’s because he hasn’t yet been able to get discovery against the paper,” Tatel responded. “What you are saying to him is, in order to get discovery you have to prove the paper has the information you want, which you can’t get without discovery.”
Tatel said it doesn’t “seem to me to be particularly speculative to think that under certain circumstances the newspaper might well know who that source is. Why is that speculative?”
The appeals court did not immediately rule today.