Attorney Stephen Kohn today presented oral argument on behalf of former federal prosecutor and whistleblower Richard Convertino (pictured). Convertino is seeking reversal of an order issued last year by Chief U.S. District Judge Royce Lamberth in Washington, DC. That order dismissed Convertino’s claim that an official of the Department of Justice willfully released private information about a pending investigation against Convertino to punish him for criticizing the Bush administration’s tactics in the war on terror. Judge Lamberth held that allowing Convertino to pursue discovery of the source of the leak would be "futile."
During oral arguments today before the Court of Appeals for the District of Columbia Circuit (DC Circuit), Judges David Tatel, Judge Karen LeCraft Henderson and Judge Judith Rogers asked detailed questions about how Convertino’s attempts to obtain disclosure of the source could proceed against the Detroit Free Press and its reporter. Kohn explained how a federal judge in Detroit was just waiting for the DC Circuit to rule and could then proceed to compel the paper to disclose its records and reveal what it knows about the source. A posting in The Blog of Legal Times, says that Judge Tatel, "expressed concern about the potential lack of evidence on which [Judge] Lamberth made his finding about the futility of keeping the case going." Judge Tatel noted how the Detroit Free Press still has not answered under oath about what it knows. During the argument of government attorney, Samantha Chaifetz, Judge Tatel obtained an admission that if Judge Lamberth had no evidence in the record to show that further discovery would be futile, then that finding would be an abuse of discretion. Judge Rogers said this would have been a different case if the discovery was before Judge Lamberth who could rule on the issue, but it is not. Judge Henderson stated directly that Kohn’s affidavit was not conclusory and it met the requirement for providing detailed information about how the additional discovery could make a difference. The judges allowed attorneys on both sides to exceed their 15-minute limits to answer all their questions. We can be hopeful that the Court’s opinion will stand for the value of allowing whistleblowers the time needed to prove their cases when they face protracted resistance.