The BALCO mess or travels in the gray areas of confidential source arrangement.

Media criticism.
Feb. 20 2007 11:30 PM

The BALCO Mess

Or travels in the gray areas of the confidential source arrangement.

Illustration by Mark Alan Stamaty

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.

That Ellerman was a special kind of sleaze surely occurred to the Chronicle reporters upon first meeting. I'm sure they regarded him as a treacherous force, but one whose perfidy served their ends, and that those ends advanced the common good as they understood it—i.e., they had a duty to inform the public of the illegal use of drugs in sports and of the many lies told by the athletes and their employers on the subject.

Under the sketchy rules that govern leaks to reporters, Ellerman had every "right" to deny that he was the source of the leak without having the Chronicle publicly contradict him. Some would say that he was within his rights to blame others—including the prosecutors—for his leak without risking exposure by the Chron. But I get a little woozy at the notion that Ellerman's "deal" might have included the right to break additional laws that the Chronicle must ignore. Indeed, by viewing additional grand jury documents after Ellerman filed his motion, Fainaru-Wada almost seems to be sanctioning the lawyer's blatantly illegal motion.

There is a school of thought that says as long as Ellerman didn't give the Chronicle any bad information he upheld his side of the bargain, and that's that. Law professor Alexander M. Bickel, who represented the New York Times in the Pentagon Papers case, veers in this direction. In his much cited book The Morality of Consent, he holds that journalists shouldn't over-worry about their source's motives, writing that "the presumptive duty of the press is to publish, not to guard security or to be concerned with the morals of its sources." What matters first is the quality of the information reporters produce. "[T]he weight of the First Amendment is on the reporter's side, because the assumption underlying the First Amendment is that secrecy and the control of news are all too inviting, all too easily achieved, and, in general, all too undesirable," he continues.

Not knowing the inside story, I won't rush to judge the Chronicle's recent travels in the gray area of confidential source arrangements. But I do have a few questions for the paper. When—if ever—did it part ways with Ellerman? Does the Chronicle regret having quoted so faithfully from grand jury transcripts? Was it trying to bait prosecutors into subpoenaing its reporters? That's how it looks from a distance. Does it regret the last taste it took of the transcripts? Why didn't the paper do a better job in preparing the public for the Ellerman bombshell? During its long legal fight to keep its reporters out of jail for refusing the grand jury subpoenas, the Chronicle gave no indication of its morally ambiguous relationship with Ellerman. It was all "rah-rah-rah" for the First Amendment. Looking back, does the newspaper wish it had done something to prevent its relationship Ellerman from becoming so ... morally ambiguious?

Finally, we journalists always talk about the "chilling effect" when a reporter is threatened with jail. How come nobody is talking about the "chilling effect" of the BALCO source going to jail? Ask the next reporter you talk to whether the resolution of the BALCO leak investigation is going to make it harder for the press to cultivate confidential sources.

******

Yeah, I'm a member in good standing of the FAIC. What's it to you? Send news of your embarrassing memberships to slate.pressbox@gmail.com. (E-mail may be quoted by name unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)

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