When a reporter lies down with confidential sources, he should be prepared to get up with prosecutorial fleas, as San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada learned the hard way in reporting the BALCO steroid and performance-enhancing drugs case.
About two years ago, federal investigators launched a search for the confidential source who broke the law by giving Williams and Fainaru-Wada access to grand jury documents from the BALCO investigation. The reporters' Chronicle stories quoted the testimony of MLB players Jason Giambi, Barry Bonds, and Gary Sheffield, among others, about steroid and drug use by pro athletes.
The Chronicle duo refused to answer grand jury questions about their sources and were bound for jail on contempt charges when the feds finally found the leaker last week: It was Troy Ellerman, who had worked as a defense attorney for BALCO executives. Ellerman admitted leaking the transcripts and pleaded guilty to four felony counts of obstruction of justice and disobeying court orders. He faces up to two years in prison and a fine of $250,000.
Back in 2004, after the Chronicle published the leaks, Ellerman told the New York Times this whopper—"The jury pool has been infected, and our right to fair trial has been jeopardized"—as he proceeded to file a motion with the court to dismiss the case against a BALCO client, claiming that the Chronicle disclosures compromised his client's right to a fair trial!
Having found their leaker, the feds dropped the subpoena against the reporters. But a number of journalists, lawyers, and ethicists in the First Amendment Industrial Complex (FAIC) weren't happy to learn that Williams and Fainaru-Ward weren't the free-speech martyrs they imagined them to be.
When the Chronicle reporters used Ellerman by publishing his leaks, that was OK with the FAIC. It's FAIC dogma that it's OK in principle for journalists to publish information of vital public concern that other people have broken the law to obtain or share. Many of the most important leaks in journalistic history have required a source to break some law: Daniel Ellsberg's delivery of the classified Pentagon papers to the press, or Mark "Deep Throat" Felt's leaks to Bob Woodward during Watergate, or even the leaks of classified information about domestic surveillance by the NSA to the New York Times' James Risen.
What really ticked the FAIC off was that Ellerman had used the Chronicle reporters—by filing his deceitful motion to dismiss—and they did nothing to stop him or to inform the public of the deceit. And what really set the FAIC teapot boiling was that after Ellerman filed his motion, Fainaru-Wada visited Ellerman's office one more time to collect additional grand jury tidbits. Yes, the Chronicle used Ellerman after Ellerman used the Chronicle after the Chronicle used Ellerman.
Among the most furious in the FAIC was Tim Rutten of the Los Angeles Times, who came on like a hanging judge in his column last week, scorching the Chronicle for its conduct. He writes:
To assert any form of journalistic privilege in a situation like that is something far worse than moral obtuseness. Conspiring with somebody you know is actively perverting the administration of justice to your mutual advantage is a betrayal of the public interest whose protection is the only basis on which journalistic privilege of any sort has a right to assert itself.
Obviously, Williams and Fainaru-Wada should have dusted themselves with something stronger than flea powder before snuggling up with Ellerman. As experienced reporters, they knew that most leakers arrive on the scene with their own agendas. They are not angels, either. A defense attorney leaking grand jury testimony is suspicious, but one filing motions to dismiss based on his own leaks is absolutely dangerous.