- Dan Bartlett
Counselor to President Bush
- Carl Bernstein
- Mark Corallo
Former director of public affairs, Justice Department
- Lucy Dalglish
Executive director, The Reporters Committee for Freedom of the Press
- Randall Eliason
- Mark Fainaru-Wada
Reporter, San Francisco Chronicle
- Edwin Meese
Former attorney general
- William Bradford Reynolds
Former assistant attorney general
- Tasia Scolinos
Director of public affairs, Justice Department
- Lance Williams
Reporter, San Francisco Chronicle
When we go on the air with this in February, two reporters in San Francisco, for example, are facing jail for reporting a story which the president himself has said was in the national or public interest. That's the BALCO [Bay Area Laboratory Co-Operative] case, the steroids-in-baseball case. Yet they're facing jail because the Justice Department, using its discretion, has decided to try to force them to comply with a grand jury subpoena. Does the administration back that decision?
I don't know the details of that case, and it would not be appropriate for me to comment on an active investigation. But there is generally an important debate that we ought to be having in our country about the ... knowledge of criminal activity ... and the pursuit of a criminal investigation.
But this is playing out in several different cases, not just this one, and I think the courts are going to have to weigh in in this matter.
But the administration has a discretion, through the Justice Department, whether or not to bring certain cases. And I guess in this particular case, the question is, what's the rationale? You're going to shut down reporting on something which everyone says has been to the interests of our public health and to our youth who are involved in sports.
Well, I think that's subjective, to say that it would shut down. These are tough calls. We put very seasoned and experienced prosecutors in these positions, these U.S. attorney positions, to make the tough calls. But ultimately, that's why there's the checks and balances of a court system. The courts will ultimately vet that out.
So we cannot expect the administration to back down on the BALCO case?
Again, I speak only personally for the president. We would not interject from the White House into a criminal prosecution. The U.S. attorneys involved in this have broad discretion to pursue these cases as they see fit.
… Why did you write your affidavit in the BALCO [Bay Area Laboratory Co-Operative steroids] case? What do you think is going on there?
I think that what's going on there is that two reporters did their job -- that is, that they did a hell of a job reporting -- and that [San Francisco Giants'] Barry Bonds, who did not like their reporting, has tried to seek some retribution. The result is that now there is a subpoena out for these two reporters. That's what I think. ...
The reason I signed that affidavit is that ... this is how we come by important information that makes all of us better off by knowing the truth -- that's all I said -- and that this principle of confidentiality is one that we must maintain and that in light of Branzburg, and the fact that we have no absolute right under the Supreme Court decision to claim a privilege, then it is incumbent on prosecutors to make this a matter of last resort. ...
[Why did you submit an affidavit in the BALCO investigation?]
I felt that, personally, this was an abuse of power. ... I felt that in the BALCO case the government just did not meet the standards set by their own guidelines. The Justice Department has very clear guidelines about subpoenaing reporters for sources. This one doesn't even come close. There's no grave national security matter here. There is absolutely no harm to life or limb. The only harm to life or limb comes from the drugs. ...
And these two guys, [San Francisco Chronicle reporters] Mark Fainaru-Wada and Lance Williams, cleaned up baseball. ... I'm a Yankee fan; when you say DiMaggio and Mantle, I genuflect. And the idea that these guys cleaned up a game that I love, that they should be subject to this kind of abuse in a case that was already prosecuted and closed, where you had a defendant who pled guilty and already served his jail time -- ... without that leak, baseball maybe doesn't confront the problem.
These are two gentlemen that the president of the United States called heroes and said did a great service to their country. I agree with that; I think they are heroes. And I think there comes a time when the Justice Department has to look at a case -- a leak case -- and say there's no reason to go forward here; there's no good reason to do this. ...
What's the problem here? Your successor is not a baseball fan?
I don't know. I don't know what's happened here. It seems that there has been a policy shift. It seems that -- the way we operated under Attorney General Ashcroft, where we were absolutely committed to not issuing one of these subpoenas. That seems to have changed. ...
... Let me put myself in the position of a prosecutor who would say, look, there is a rule; it's called 6(e). It says anything that goes on inside a grand jury is supposed to stay in the grand jury. ... These gentlemen got a leak of this information, published it, damaged reputations, presented information that should never be public, and are making money off of it. And one of the people who is named in the grand jury in this case, [the San Francisco Giants'] Barry Bonds, has filed a civil action on this exact point, that his rights have been violated. So we have to investigate. This is what the guidelines were there for. … Rule 6(e) is sacrosanct to prosecutors and to the Justice Department, as well it should be.
But again, there's a bigger picture here, and you have to weigh the damages. ... If grand jury information is leaked, there is going to be some damage. But I would submit that there's a greater damage when you try to haul in a reporter who is just on the receiving end of the information and threaten to put that reporter in jail for protecting a source.
This is not a case where anybody's life is in danger. I think even Mr. Bonds realized that he didn't have a case and has dropped his case. I just think that the Justice Department was way out of line here. ...
… The current attorney general [Alberto Gonzales] has said that while he appreciates and respects the importance of the press [doing] its job, we also can't have a situation where someone who does a terrible crime can't be prosecuted because of information that's in the hands of the reporter.
I absolutely agree, and that's why this is done on a case-by-case basis. But I want their definition of "horrible crime." The guidelines are pretty clear that a horrible crime in these matters has to involve either national security or real physical harm. ...
What is the BALCO case all about?
BALCO, that's also an interesting case. ... The San Francisco Chronicle did some groundbreaking stories about steroid and substance abuse in Major League Baseball. There was a lab out there that they called BALCO, the Bay Area Laboratory Co-Operative. They were under investigation, so the feds have a grand jury investigation; these charges come about. A number of prominent baseball players testify in front of this grand jury. Charges are brought, and along the way, these two reporters for the Chronicle get ahold of some grand jury information. ... The court and the Justice Department were very, very angry that this supposedly secret grand jury information was reported outside of what happened in the trials and the other court hearings.
So they launched an investigation into who the leaker was. This case was going on in San Francisco; they went to the U.S. Attorney's Office in Los Angeles to try to identify who the leakers are, and they have subpoenaed the reporters from the San Francisco Chronicle to find out who apparently or may have violated a court order by releasing the grand jury information. ...
... Why should reporters have the right to publish secret grand jury testimony? Doesn't that interfere with the government's ability a, to conduct an impartial investigation, and b, to protect people who have not been charged with wrongdoing?
I think there are a number of people out there who would say yes, and in many cases, when media find out about grand jury investigations, they do sit on information quite a bit. There's a lot of information reporters get that is not reported.
However, in the BALCO case, I think the news organization made a very careful decision about an event and events, about a very important news story. The use of steroids and other substances in major league sports is a very, very big, national problem. Children look up to these folks and get the idea that if they are big and strong, maybe they can make it as a major league ballplayer as well.
I understand it's a worthwhile story.
It's a worthwhile story.
... But still, this is the United States of America. The grand jury is in the Constitution. It's an institution that requires secrecy, and people will not testify freely before a grand jury if they know that the transcript will get leaked.
I suppose that's possible that some of them won't. ... It's illegal for only a handful of people to reveal what happened in front of a grand jury. If you're on the grand jury, you're not supposed to reveal it. If you were one of the lawyers or one of the parties, you're not supposed to reveal it.
But you, as a citizen, if you are called before a grand jury to testify, you may go out the next day and tell anybody in the world what you said and what the case was about. There's no law that prevents that. ...
I think it's important to note that in these grand jury cases we just talked about, Taricani and BALCO, one thing that you worry about with the leak of grand jury testimony is that you're not going to be able to pursue the case, or that someone will not get a fair trial or there's no prejudicial pretrial publicity, and there are all of those interests. That's why the law provides for grand jury secrecy.
I think it's important to point out that in both the Taricani case in Rhode Island and in the BALCO case in San Francisco, these folks have already been convicted or pled guilty or are already serving their jail time. Justice was done. The cases themselves were not jeopardized, which I think is the strongest argument a prosecutor has. If this information gets out, we're not going be able to see justice done here. ...
So does the BALCO case indicate that the government, the Justice Department in particular, is no longer abiding by its old guidelines?
I don't think I could conclude that. They claim that in this case they did follow the guidelines. Even during the Clinton years, with [Attorney General] Janet Reno, we've always had a certain number of subpoenas come out. So I guess I would take them at their word when they said that they used the guidelines and exhausted them. ...
I want to go on to BALCO [Bay Area Laboratory Co-Operative]: ... If you're a casual observer, ... you might see reporters who are exposing corruption, drug use in baseball, who are facing jail, [and] baseball players who are doing the drugs are rich; they're not being punished at all.
The athletes were testifying in a grand jury, again, under a guarantee of grand jury secrecy. Now, it's not an absolute guarantee, because they know if they have to testify at trial, of course, then ultimately the secrecy is going to go away then. ... But they do know at least when they go in and testify that their privacy is protected. The leaks that were made to the reporters then sort of took away those rights, exposed the athletes to a lot of public scrutiny, the congressional hearings and a great deal of reporting and stories about their activities. Now, their activities were wrong, using illegal steroids, and so you can say that's a good thing as well.
But the fact is, grand jury secrecy exists for a reason. It protects the privacy of people who might be under investigation but end up not being charged. So their reputation, their name is not put out there as possibly having done something wrong if they end up not being charged at all. It protects witnesses who might be fearful about it being known that they have cooperated in a case. And so it allows that to remain secret.
The BALCO investigation now is about more than just a grand jury leak, because the information was leaked in violation of a federal judge's order. Everybody involved in the case then came in and denied doing it, so someone may have committed perjury. And there's a suspicion that the defense may have been involved in the leak and then turned around and tried to get their case dismissed by blaming the government. So that would be a possible obstruction of justice or contempt or other charges. So there's a lot more going on than simply a leak of grand jury information. ...
We talked to Mark Corallo, formerly with the DOJ under Attorney General [John] Ashcroft. He calls this case an abuse of power; he says the DOJ under General [Alberto] Gonzalez has basically violated the [DOJ] guidelines. Is that valid?
Well, I'm not sure how Mr. Corallo could say that without having access to the grand jury information. ... It's pretty hard to make a judgment of whether the guidelines have been violated when you don't have the information as to what's being investigated and what's going on. So that's not entitled to much weight in my mind.
He told us, in the DOJ guidelines, that only under "exigent circumstances" should journalists be pursued, and he said that "exigent" was defined ... as emergencies, life and death, real national security threats, a situation where a leak caused a terrorist organization to be tipped off as to where the feds were. ...
Yeah. I think there's some disagreement about what that term "exigent" means within those guidelines. I've seen other interpretations of it as well. He's entitled to his view. But again, I think without knowing everything that the government is looking at in this investigation and everything that's going on in the grand jury, it's awfully hard for someone on the outside to make a judgment about whether or not the guidelines have been complied with.
The other thing that's important to keep in mind here as well is a federal judge asked the government to look into this. This isn't something that the prosecutors have just gone out on their own. ... When a federal judge asks you to investigate why their orders were violated, you have to take it seriously.
I'm going to read to you another quote from another interview. This is with one of the [San Francisco Chronicle] reporters, Mark Fainaru-Wada. He said that "without the names, the stories don't resonate. I mean, without the names, you have the indictments talking about four guys who nobody's ever heard of or cares about, dealing performance-enhancing drugs to a bunch of athletes that are not identified." ...
Well, an indictment is not a press release, you know? It's not the job of an indictment to make all this information public. The job is to file specific criminal charges, and I think there were very good reasons that the athletes weren't named in that indictment, primarily to prevent exactly what happened once their names were exposed. Once their names became known, there was this tremendous amount of publicity, and the criminal defendants all of a sudden came into court and said: "We can't get a fair trial. Look at all this flurry of attention now. Everybody thinks we're evil, and we can't possibly get a fair trial. You should dismiss the case." ...
Much is made of the irony in this case that President Bush apparently commended these reporters themselves for having done a vital public service. If the public good was served, why do these reporters deserve to go to jail?
That's sort of an "ends justifies the means" argument; in other words, no matter how many laws were violated or how much the federal judge's order was defied, it's OK, because we have this really important story. Writing the story is not the only interest at stake here. There were interests in these criminal defendants in getting a fair trial and interests in a federal judge's orders being complied with. …
I think you can grant that there's some public good that came from the reporting, but remember, there was a lot of reporting that they did on this story that did not involve leaked grand jury information. But now we're not talking about the reporting and the steroids story anymore. Now we're talking about the ability to investigate somebody who may have committed perjury, obstruction of justice, violated a court order by giving information to a journalist illegally. ...
[San Francisco Chronicle reporter] Lance Williams said: "I respect the court system, and I'll comply with their wishes in every way possible. But I am being asked to -- not asked, told to betray not only sources, but betray ideals that I've held for over 30 years as a reporter. And I'm also being asked to give up my career, because don't kid yourself: If they bully me into betraying my sources, I can't work anymore."
Well, I think it's an interesting notion in journalism that the professional ethics and standards require them to violate the law. No one in our country has a right to decide themselves what the law requires. I know journalists feel very strongly that they need this privilege in order to do their jobs. Congress hasn't agreed, and the Supreme Court hasn't agreed, so journalists have no more right than any other witness to say, "I'm just not going to testify, no matter what you say." ...
You were a sports reporter for quite a while?
Right. I was a sportswriter pretty much all my career in journalism, up until August of 2003, about a month before the BALCO [Bay Area Laboratory Co-Operative] scandal broke.
[San Francisco Giants'] Barry Bonds, as you guys point out in your book, had gained, what, 15 pounds of muscle in 100 days and transformed into an NFL linebacker. Why didn't other people write about this? What was so difficult to report?
I think the story was hard for a lot of people. First of all, a lot of sports reporters in particular, and really reporters in general, were not educated about the notion of steroids. ... You had the 1988 scandal in which [sprinter] Ben Johnson is exposed when he breaks the world record at the Seoul Olympics, but he's a Canadian. ... You have the East German legendary doping scandal of the '70s and '80s. But for American sportswriters, the story didn't really resonate. ...
The other part of it was, it's a hard story to sort of wrap your arms around. People say, why didn't you write about [St. Louis Cardinals'] Mark McGwire using in 1998, for example? If people had tried to do the McGwire [story] in '98, you would have ended up with three or four anonymous sources telling you that McGwire had been using, and that story probably wouldn't have got in the paper. And if it did, it wouldn't have resonated with fans. ...
Wasn't there a lot of backlash against reporters who tried to cover the story?
Absolutely. For example, in '98, there's an AP sportswriter named Steve Wilstein who discovers a bottle of andro [androstenedione] in Mark McGwire's locker. Andro is a now-banned supplement that acts like a steroid, really. When Wilstein discovered this in McGwire's locker, there was no backlash on McGwire; the backlash actually was on Wilstein. Tony LaRussa, then the manager [of the Cardinals], lashed out at Wilstein, wanted to try and get the AP banned from the clubhouse, it was so bad. ...
So what changed?
Well, BALCO changed a lot of things, clearly. The biggest benefit for us and anybody else reporting the story was that you had a federal investigation. ... You saw athletes walking into a federal building to testify before a grand jury. ... It created any number of sources who knew what was going on: ... the feds themselves, lawyers, athletes, owners. ... It was a window into this world of performance-enhancing drugs that you couldn't have gotten into otherwise.
So how do you and [co-author] Lance [Williams] get assigned to this [story]?
I was the first one assigned. In September of '03, there was a raid on BALCO, this little-known lab at the time. ... No one had ever heard of the lab. I mean, it was just a random lab that sold supplements. ... I had just moved out of sports and into our investigative team. ... The IRS was the lead agency in that raid, so we thought it could just be a money place. But when you went to the Web site for BALCO, you saw all these famous athletes that were part of the company, or that were at least doing business with the company. Barry Bonds was the most prominent, but [sprinter] Marion Jones, [sprinter] Tim Montgomery, [NFL linebacker] Bill Romanowski. ...
So at that point, the interest got ratcheted up. I was assigned to try to figure out what was going on. We broke about three stories or so within a month: found out that there was a steroid investigation; found out that Bonds had been subpoenaed; found out they'd found steroids when they raided the place. ... It became clear the story was getting bigger, ... so Lance joined me, and we've basically been together on the story ever since.
And you went through what, 200 interviews a year, thousands of documents?
At least. We tried to be conservative on that when we talked about it, but we spent three years reporting the story, essentially, and still are reporting it to this day.
How important was the grand jury testimony? …
I think it was critical in many ways. ... What the grand jury stories did was actually put a face to the use of drugs. They were admissions by the athletes themselves, who in many cases had come out of the grand jury [and] denied they'd ever used the drugs to the public, but in fact had actually told the grand jury they had used the drugs. ...
And the fact that you made the grand jury testimony public, didn't that put the government in a position of, for example, with Barry Bonds, having to really look at him for perjury, look for other charges?
I don't know what is inside the government's head, ... but I would suggest that from the moment that Bonds had testified, I think it was clear to prosecutors that he had not told what they believe is the truth. And so they, from that point on, were looking at that. I don't think us publishing the grand jury testimony had a bearing on them deciding to pursue that issue. ...
What made them decide to come after you for a leak investigation years after the original leak?
I guess you'd have to ask them the question. ... They told the public, I guess, that they think that this is an important issue and that they've tried to figure out who provided us with this information; they can't do it, and they think reporters should provide that information to them or face the consequences.
Do you think the excerpt in Sports Illustrated and then the book forced their hand?
No. Based on the stories, it's been going on since February of '05. That's long before there's a book anywhere remotely close to being published; it's long before SI is even dreaming of running excerpts. They raided [BALCO owner] Victor Conte's house [in February 2005], for example, and then they started filing sealed documents. But again, I'm not inside any of these people's heads. ...
At some point, you took possession of what you thought was grand jury testimony. ... Did you understand that there was such a thing as [Rule] 6(e); that it's not legal to make public grand jury material if you're a participant in the grand jury or an officer of the court?
Sure. We understood the seriousness of the issue, and we understood that this material was not public. Otherwise it wouldn't have been such a big deal for us to be reporting it. But we also immediately saw the relevance of it, thought it was important, thought it served a public interest in reporting it, and made a decision that we thought that there was a value to gain and didn't back off on that. ... We heard from the government almost immediately upon publishing our first story that had grand jury testimony in it. That was in the summer of 2004. So clearly it was an issue. ...
What did they say to you?
They said, "We understand you have this information, and we'd like it back, and we'd like to know how you got it." ... We thought, talked about it, all of us, and of course, you know, respectfully declined. ...
You get a letter from the U.S. attorney, and he says: "Hey, we want these documents that you have. We also want the wrappings it came in to help us figure out who sent it to you. And we're serious about this." That didn't cause you to stop what you were doing and say, "Maybe I'm going get in trouble"?
Because you'd never heard of anybody else being subpoenaed?
No, it wasn't that. We recognized the possibility we could get subpoenas, ... but we were covering a story. We thought it was an important story. We wanted to know everything we could about the story. And we thought grand jury material was important to being able to convey what was going on, information that the public had not been made aware of and that was continually being hidden from the public view. ...
And my understanding is the [San Francisco] Chronicle has been subpoenaed for documents, e-mails, etcetera?
Right. I think that's correct.
You know what happened at Time magazine [where Time Inc. handed over reporter Matt Cooper's notes and e-mails in the Valerie Plame investigation, because they were in Time's possession]? ... Is that going to happen here?
I don't believe that that's going to happen here, but we're totally comfortable with what's going on and the support we're getting from the Chronicle, the support we're getting from Hearst [Communications]. ...
And do you believe it when your editor [Phil Bronstein] pledged to us he would go to jail, too?
I believe absolutely. If Phil said that, then I believe it. He said it to us, and nobody has been more supportive in this situation than Phil has. ...
Did you assume that the Department of Justice was going to use the guidelines they still have? Did you think you were still going to be protected by this sort of truce that took place between journalists and the federal government?
I thought the guidelines certainly would help. Those guidelines, as we've read them and as we've been taught them by other people, would seem to indicate we wouldn't necessarily be subpoenaed. ...
In terms of why it took them as long as it did, we knew that the guidelines were such that, in order to get to the point of subpoenaing us, they would have to go through the process of eliminating any other ways to find out who the source or sources were, ... and we knew that they were still doing that kind of investigation.
Do you believe a grand jury should have secrecy, if that's what it's required to have?
I understand that's the law, and I understand the importance of the secrecy issue for a grand jury. But I also recognize that ... there's an element of it that is secret only as long as the government decides it's secret or as long as the witness decides it's secret. ...
We never wanted to minimize the seriousness of the grand jury issue, but we also felt like in balancing that with the public's right to know, as quaint as that sounds, that there was a value report in the stories. ... The government later said they were out to clean up sport, but anybody will tell you that if you're really going to clean up sport, you're going to need to out some people, and you need to put some names to who's using. ... Without the names, the stories don't resonate. ... Without the names, you have ... four guys who nobody's ever heard of or cares about dealing performance-enhancing drugs to a bunch of athletes that are not identified. ...
The prosecutors in this case ... decided to go after these four guys [Victor Conte and Jim Valente of BALCO; Bonds' trainer, Greg Anderson; and track coach Remi Korchemny]. And when they issued the indictments, they redacted the names of every single athlete, or they changed them to some generic reference such as "an Olympic superstar" or "a major league baseball player." They shielded the information from the public and treated them as if they were regular users on a street corner buying dope for $25 or $100. They're multimillion-dollar athletes who made more millions by virtue of using the drugs.
And you think they did that because?
Boy, I don't know why they did that. The only public comment they've ever made about why they hid the names was that that was the practice of this U.S. attorney's office to not reveal the names of people who are not indicted. But that really didn't ring true, because a, there were other names in the indictments of people who are not indicted and who are allegedly part of the conspiracy; and then b, my colleague Lance Williams, who spent a lot of time covering courts and cops, will tell you he's looked at any number of indictments that had the names of users or others participating in the conspiracy who weren't indicted. ...
Are you implying that the prosecutors were afraid to take on the big fish -- the leagues, the multimillionaire athletes with big-time lawyers who would admonish them for destroying careers?
I don't know that we're necessarily implying that. There's probably a reality to some of that, but I think it's more that we're saying ... the athletes knew if this became public, it would not be good for them; the leagues knew if it became public, it would not be good for them. ...
I know you're protecting a source, sources around this grand jury situation. But shouldn't we be concerned about your source's motive?
... I'm not going to talk about motives of anybody who's provided us information, but I think that that's something we always think about, we always consider. In this case, remember, ... the grand jury information is the words of the actual athletes testifying about themselves and what they used. For our money, the story was always about that. ... There's a difference between the motive of somebody who you're quoting anonymously and the motive of someone who's providing you with documentary evidence. If that documentary evidence stands alone on its own, then you can report on that. ...
Why would I want to make this grand jury testimony public? It's going to destroy the careers or create difficulties of the careers of some very well-known athletes. Don't you think the public needs to know the motive of who would do that?
... One of the things we've said throughout is ... these folks are whistleblowers in the true sense, I think. They're whistleblowers in that the public is being shielded from information that is relevant to what they're paying for, essentially.
Sports are big business whether people want to accept it or not; the athletes are role models whether they want to accept it or not. If there's a reality that these athletes feel that they need to be using performance-enhancing drugs to succeed and are using performance-enhancing drugs to succeed, that message is going to trickle down. There's no question. ... The reality is these drugs are vastly more dangerous for young teenage boys in particular than they are for you or me. ...
No, I don't think the public necessarily needs to know the motive. The relevance of this information is clear. We made a decision based on that, and we would make the same decision we made again. ... …
The president of the United States, you met with him?
What did he tell you about your work?
He told us that we had done a service, that these stories had done a service. He talked to us for a little bit. We were at a White House Correspondents' Association dinner in which we received an award. There was a private reception in which we had the opportunity to meet him, and we walked up and introduced ourselves and told him about the stories we'd written. He was familiar with them; he's a baseball guy, obviously. At one point he said, "Well, you guys have done a service." He talked about McGwire's testimony before Congress, and he talked a little bit about [Baltimore Orioles' Rafael] Palmeiro's testimony before Congress; this is prior to Palmeiro testing positive. But he clearly knew what was going on, and he clearly told us the stories have done some good. ...
Did you ever think you'd be facing jail in a story, or this story?
Once we started to think about subpoenas [and] saw Judy Miller play out and all that, I certainly thought about jail, but prior to that, no. ...
Your attorney, Eve Burton, has said, "If the press loses this case, if confidential sources cannot be protected in this case, it's hard to see what case they'd be protected in." Do you agree with that?
Well, Eve knows a lot more about this than I do. ... But I do recognize that our case -- because it doesn't have any of the national security implications or the threat to anyone's physical well-being -- if you eliminate those things and now you still don't have an opportunity to have any level of confidentiality for reporters, it's hard to imagine what the situation would be. ...
So you're ready to go to prison?
Well, "ready" is perhaps not the appropriate word. Prepared, I guess, although I don't even know if I'm prepared. If we have to go to prison for this thing, then that's, I guess, what's going to happen. I don't say that lightly at all; neither of us want[s] to go to jail. ... But if this is what a judge decides, then that's what's going to happen, because for any number of reasons, ... it's not an option for us to provide information about confidential sources.
Because you wouldn't be able to work.
Well, that's the most pragmatic reason. I mean, how are either Lance or myself ever going to pick up the phone again, call somebody, ask for information that might be confidential, and say, "Hey, I'll keep your secret," when I just went and testified before a grand jury and gave up sources?
Well, you worked for many years as a sports reporter.
Yeah. ... It's apples and oranges between talking about covering a football game and doing investigative reporting. ... If I want to call somebody as an investigative reporter seeking information from them, and they want some confidentiality, I have a hard time imagining they're going to want to provide it to me if I've shown that I'm not willing or ready to provide that confidentiality.
To promise them you'll go to jail?
Right. If that's what someone's concern is, ... then that's what it will take.
In the BALCO [Bay Area Laboratory Co-Operative] case, as it's called, the reporters in question got their hands on the grand jury transcript which allowed them for the first time to confirm publicly that [the San Francisco Giants'] Barry Bonds and [the New York Yankees'] Jason Giambi and other players were actually before the grand jury and report their testimony. The case was over in terms of the main defendants are already adjudicated; they went to jail. The reporters then receive subpoenas to testify. They refuse to testify, and they're facing jail. It doesn't seem like life or death is involved or national security is involved.
No, but here's what is important; that is, they were asked to testify, if I understand correctly, about where they got the information and got the secret grand jury testimony. Isn't that the case?
And that is a most serious crime. See, the reason for the confidentiality of grand jury proceedings is many times, people are or cases are brought before the grand jury, and it turns out that no crime has been committed. Therefore that remains secret so as not to hurt the reputation of people who might have been thought to be possibly criminals, have committed a crime. But it turns out that the grand jury did not find the evidence to indict them.
The principle of keeping secret grand jury testimony is a protection of the average member of the public and is absolutely sacrosanct. The idea that someone would leak grand jury information is a very serious crime, because it threatens the reputation and the good name of people in society, innocent people.
As a result, the desire to find out who is leaking grand jury information is a very serious crime. Therefore, it is entirely appropriate that reporters who got the information and would have information about a serious [crime] should be required to testify before the grand jury. …
Even if the main criminal case is over?
Even if the main criminal case is over. It's not a matter of the criminal case. The matter has to do [with] who leaked the secret information.
But even in the situation where the president of the United States has told the two reporters personally at a dinner in Washington they did a great service to the public in publishing what they published?
Well, I would disagree with the president. I don't think he understands the reason for the sanctity of the grand jury, if in fact that's what he did. ...
... The unusual thing is that Mark Corallo, who used to work for [former Attorney General] John Ashcroft [as director of public affairs], has given an affidavit and gave us an interview in which he says that he doesn't understand what this Justice Department is doing in that case; that it's a violation of the guidelines, the history of the Justice Department's involvement in the issue of subpoenaing reporters.
Well, I'm not sure that's correct. I think that leaking information or revealing information from grand jury testimony is a very serious crime and was regarded as a very serious crime when I was there. If this had happened under those circumstances when I was there, probably we would have permitted the subpoenaing of newspaper reporters, if it was clear that was the only way we could find out who it was who had access to grand jury information and then leaked that in violation of the law. ...
So in something like the BALCO [Bay Area Laboratory Co-Operative steroids] case, can you just explain to me, taking Branzburg into consideration, what are the reporters up against?
My own view is BALCO would be a case that the reporters probably would have a hard time with in the Supreme Court under the Branzburg precedent. As I understand BALCO, the issue is presented in terms of these two fellows who wrote a book, and the information in the book comes from leaked information that came out of the grand jury. The real issue in BALCO is who inside the grand jury room leaked the information.
Now, there is the sanctity of the grand jury and secret testimony, and it's unlawful to leak grand jury testimony. So you're asking the two reporters to identify whoever it is that committed a crime by leaking secret testimony, and in doing so, who essentially interfered with the integrity of the grand jury system. That's one of those instances where I think if the public has a right to know the testimony that the reporters told us about, they have every bit as much right to know who it is that leaked that, who violated the law.
Because the reporter's drawing artificial lines. They say it's important for the public to know the criminal conduct, but it's not important for the public to know a criminal. I'm not sure why one is more important for the public to know than the other if there is an importance. That kind of line drawing raises some questions about this principle that they're standing on.
But if you put that aside, I also believe that it was clear in Branzburg, not only in Justice White's majority opinion and in Justice Powell's concurring opinion but also in Potter Stewart's dissent, that a reporter who knows the identity of somebody who committed a crime, that in that circumstance the law enforcement interests in finding out that information behind the closed door of a grand jury room trumps whatever privilege the reporter is trying to assert. I think that was pretty clear in all but Justice [William O.] Douglas' dissent, which suggests to me that if one wants to bring a case to the Supreme Court to test Branzburg, this might not be the best candidate. ...
I think these fellows who wrote the book can certainly stand on that principle if that's the principle that they want to stand on, but they ought to understand that there are consequences that go with that and that they will have to pay the price. ... I don't think it's as important a case on this issue as some others.
So in the BALCO [Bay Area Laboratory Co-Operative steroids] case, the judge requested the investigation?
So that makes it more important?
That would certainly be a factor that the department would look very closely at when considering whether or not to pursue a media subpoena. ...
And you reviewed this case, the BALCO case?
That is correct. That media subpoena was granted during my tenure at the department.
Can we assume you voted in favor?
The internal processes within the department isn't something I would discuss one way or the other. ... I can tell you that we take these decisions very, very seriously. And you look at all angles of it, and there's been media subpoenas, both source and non-source, I should point out, that come across my desk. Typically, I'll read through the prosecution memos once, and if it's a close call, I'll take some time to read it through again, maybe take a day or two to really think about it. ...
But this is a case, as are many, of leaks. This is a leak investigation.
The BALCO case is one of 18 cases that we have granted source subpoenas on. So that is an example of a leak case, sure.
Well, in the BALCO case, for example, which is a leak investigation subpoena, looking for sources of grand jury documents, what's the national security or exigent circumstances that requires subpoenas in that case, in a case where the president of the United States has commended the reporting?
Well, if you notice, the guidelines don't specifically say it has to be a national security case. ... There needs to be exigent circumstances, and that can take a lot of different forms. The BALCO case is an ongoing matter, and so I'm probably not at liberty to really talk extensively about it, except to say that I can assure the viewers that every bit of information is looked at with these cases. ...
Do you take into consideration that the president of the United States, who's your boss, basically, says that this is a great piece of reporting, very important for the American public, for the youth of the United States? ...
As I said, it's a very thorough vetting process within the department. I'm not going to comment on any one particular case.
Mark Corallo doesn't agree. He says that he used to do exactly what you do, and he says that this subpoena in the BALCO case doesn't even come close, to quote him, to meeting your own guidelines for subpoenaing a reporter.
There's going to be different people who have different viewpoints on this. ... I do think there are a lot of very, very good lawyers with a lot of experience who have looked at this issue very closely within the department. There [have] been 18 in the last 15 years. These are not subpoenas that the department issues lightly. ...
What is BALCO?
It's the Bay Area Laboratory Co-Operative, based down by the San Francisco Airport. Its legitimate business was to sell nutritional supplements, but as we learned from our reporting, the actual business was to sell designer steroids to elite athletes; at least that was a sideline of the proprietor down there, Victor Conte. He would often provide the designer steroids to the elite athletes gratis; in exchange, they would endorse the legal products he sold. That's the way they were doing business there.
So you expected that, since you [knew] the rumor was that [San Francisco Giants'] Barry Bonds was the target, ... that this was all going to get laid out for you?
Oh, sure, and it was more than rumor. We interviewed [a person] ... with direct knowledge of what was going on down there. He said the athletes -- not just Bonds, but there were about 30 of them that went before the grand jury -- they were all customers using the designer steroids, and that was what the case was about. ... I never expected to see court filings in which transactions of the type they were talking about had all those names cut out. I thought we'd see it.
Well, it's an element of the crime for one thing, and it's a routine practice in courts. Usually, whether you're charging [someone] or not, you'll lay out the names of the other people involved; it's just part of the facts that they were asserting. ... It's all anyone cared about, and for the people interested in controlling doping in sports, [to redact the names was] completely wrongheaded, according to them. If you want to clean up a sport, you have to expose the cheaters. That's the whole basis of doping control.
But if you look at it as a drug case, these were just consumers.
True. If this were a crack gang, those would be the guys on the corner paying 10 bucks for the crack. And who cares who they are? But that just wasn't the dynamic here. The elite athletes, really their demand for the drugs shaped the direction of the conspiracy. ...
So this was a celebrity crime story?
I guess so. To the extent it was a crime story at all, it was about celebrity crime. To us, it was a story about cheating in sports, too. We had not only the home run king, but the sweetheart of the Sydney Olympics in 2000 [track star Marion Jones]; we had the world's fastest man [Tim Montgomery]; we had one of the best NFL linebackers ever [Bill Romanowski]. These are great athletes, and to learn that they had attained their prowess through illegitimate means was significant. ... [The] government was countenancing [it] by sealing up those court records as they did and redacting the names. They were enabling these guys to come out and lie about what they were doing, even after admitting it.
So you saw your job as?
Tell the truth, ventilate the truth, describe the actual dynamics of the steroids conspiracy, which was a big deal for elite sport in our country at the time. ...
Now, by background, you're not a sports reporter? ...
Sure, I'm not a sports reporter. I've never written about sports. I'm kind of a second-deck baseball fan and so forth. But my partner, Mark Fainaru-Wada, is a sportswriter. He was the first reporter in for our paper, the [San Francisco] Chronicle. ... Originally, we had a federal raid on a vitamin company down by the airport, and the feds wouldn't tell anybody what they were doing down there. ... Mark worked for about three weeks, and I was brought in because the story was getting bigger, and there were more angles to chase. ... I have background in courts and legal matters.
And when you took a look at it, what did it look like to you from that perspective?
As a drug case, unlike any I'd ever covered because of the way it was being conducted by the feds. They weren't running it like you'd expect to run an investigation. There were so many quirks to it. You start with the fact that the steroids themselves are such a lightweight offense under the federal laws, and yet they had gone just big time after these guys. In the end, the lead dope dealers got four months in prison, and that was all they thought they could get on a 42-count indictment. So it was just an unusual case in that regard.
The government was interested. The president of the United States was interested -- remember, he mentioned it in his State of the Union address -- and they got indictments in the case. Attorney General [John] Ashcroft announced the indictments on national TV. So at the highest level, there was interest in steroids control that was being manifested.
But I always thought there was always a little disconnect between that policy-level interest and what was going on at the ground level by the U.S. attorney in San Francisco. ... The prosecutors in San Francisco decided to protect the privacy of the athletes, and that seemed unusual to me. ...
Why do you think they went that way?
Well, I have to speculate that it had to do with an impulse to protect wealthy celebrities. That seemed to be what it got down to. ... After the indictments, the U.S. attorney, Mr. [Kevin] Ryan, was asked about this: Why didn't you put out the names of the athletes? And he said, "It's our policy not to do so because they weren't indicted." But if you look at the affidavit in the case, there's three pages of narrative about some bodybuilder [who is] named; he's never charged with a crime, but they spend about three pages of a 50-page document describing in detail allegations of dope dealing and other misconduct on his part. There's no privacy issue there. So you wonder why the privacy issue did exist for the athletes whose names were all removed from the documents. ...
But it could have also damaged professional sports. Baseball, football -- these are multibillion-dollar industries.
It might damage their economic prospects in the short term, but I think cleaning up those sports ... is really important for the sports themselves, and they at least say they believe that, too.
In your book, you talk about thousands of documents, hundreds of interviews. How critical, then, was this grand jury transcript?
The grand jury transcripts made really important newspaper stories and helped quite a bit with the narrative of the book. The importance of the grand jury information was that it was persuasive to people. Citing them, it convinced leaders and policymakers that what we were describing was true. One had [New York Yankees'] Jason Giambi's own words admitting he was using banned drugs. This is one of the guys that denied it publicly after he testified privately he was using banned drugs. ...
If you'd written a story [in which] three unnamed sources say that Jason Giambi used steroids, that would be so easily dismissed by Giambi, his handlers, everyone. It just wouldn't have the credibility that a sourced document of the kind that we're talking about did. ...