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mark fainaru-wada

Fainaru-Wada is a former sports reporter-turned-investigative reporter at the San Francisco Chronicle and the author, with Lance Williams, of the paper's stories on steroids usage by baseball players, including the San Francisco Giants' Barry Bonds and the Yankees' Jason Giambi. The two reporters also published a book: Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports (2006). A key source work their reporting was the athletes' leaked grand jury testimony; Fainaru-Wada and Williams faced jail time for refusing to reveal their sources until the leaker, defense attorney Troy Ellerman, came forward on Feb. 14, 2007. This is an edited transcript of an interview conducted on Aug. 28, 2006.

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. ...

“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 need to put some names to who's using. The stories did not resonate until there were names associated with this.”

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?

We did.

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.

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posted feb. 13, 2007

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