Surface and Schatte are set for trial later this year, but Surface's lawyer is trying to use 13 Undercover's reporting to get the entire case thrown out.
"The entire process is tainted and the judge is left to make a decision as to whether the taint is such that it cannot be removed and the indictment should be dismissed," said Chip Lewis, Surface's lawyer.
In a 13 Undercover report, Wayne Dolcefino examined the potential connections between Commissioner Jerry Eversole and Mike Surface.
Surface's lawyer alleges FBI agents leaked information to Dolcefino about the Eversole case. If that occurred, Federal District Court Judge Lyn Hughes called it, "a fatal disease of injustice" in court Wednesday afternoon.
Lewis says to get the case thrown out he'll call Wayne to the stand.
"Would you ask a reporter to divulge a confidential source?" we asked Lewis.
"I would not unless I believe that confidential source has broken the law, which we allege in this case," he said.
Doing that, putting a reporter on a witness chair under oath to reveal confidential sources, sets up a pretty serious fight here at the Federal Courthouse.
"Reporters for the entire history of this country don't reveal their confidential sources. This is not a recent thing. Benjamin Franklin was called in front of the legislature and asked to reveal the identity of a confidential source he used in his newspaper in Philadelphia and he refused to do it, and that was the end of it," said attorney Chip Babcock.
Babcock, who represents KTRK, says there are options aside from forcing reporters to testify about confidential sources. They are people reporters depend on for accurate information the public needs to know.
"Any time a journalist is called on to reveal a confidential source, there is a serious First Amendment and statutory and common law tradition that is worthy of protection," said Babcock.
A hearing could be set and subpoenas issued by sometime next month. In the meantime, a federal investigation continues into what Surface may have improperly given to Commissioner Jerry Eversole.