SAN FRANCISCO — The Bush administration urged a federal judge here yesterday to force two San Francisco Chronicle reporters to divulge who leaked them secret grand jury testimony of Barry Bonds and other athletes who took part in the government's probe of the Bay Area Laboratory Co-Operative.
Noting that it is a crime to leak grand jury materials to the news media, federal prosecutors Brian Hershman and Michael Raphael wrote that "there is no reporter's privilege in criminal cases, under the First Amendment or under common law," in their 51-page brief.
The attorneys said California's shield law protecting California reporters from divulging their sources did not apply in the federal probe into who violated a court order and leaked the documents.
Reporters Lance Williams and Mark Fainaru-Wada reported a series of stories beginning in 2004 detailing the secret testimony of Bonds, Jason Giambi and others who were called to testify before a grand jury probing BALCO. The government's investigation unveiled BALCO as a steroid ring posing as a nutritional-supplement company that doled out performance-enhancing drugs to elite athletes from its office just south of San Francisco.
The government, in its brief targeting the two reporters, repeatedly cited a 1972 decision by the U.S. Supreme Court. In that case, Branzburg v. Hayes, Justice Byron White ruled that reporters, like everyone else, must "respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."
Despite that decision, the government brief asserted, "the free press, relying on confidential sources, has thrived."
Over the years Branzburg was largely ignored. Judges more often sided with Justice Lewis Powell, who wrote separately in the same case. He urged the judiciary, before ordering reporters to testify, to balance the First Amendment rights of journalists against the public's right to know.
That tendency changed in 2003, when the Chicago Sun-Times and Chicago Tribune lost a bid to protect their reporters from divulging recordings of interviews of a witness in a terrorism case. The 7th U.S. Circuit Court of Appeals, citing Branzburg, ordered disclosure in McKevitt v. Pallasch.
The Chronicle reporters, who are subpoenaed to testify here before a federal grand jury about how they got the leaked testimony, said through their attorneys in court briefs last month that they should be let off the hook. The First Amendment right of speech, they said, was more important than the government learning who unlawfully leaked secret grand jury testimony.
The government responded that it needed the Chronicle reporters' testimony because its widespread investigation into the leak has come up empty. Allowing the two to avoid testifying could encourage the illegal distribution of grand jury testimony, it argued in its brief.
The prosecutors also noted that Williams and Fainaru-Wada should testify because they wrote a best-selling book, Game of Shadows, parts of which are based on the secret transcripts. Hershman and Raphael said reporters could have a "profit motive" to obtain leaked grand jury testimony.
"If reporters are shielded from ever having to testify as to the identity of the source who illegally provided the information, reporters will have every incentive to continue to see out leakers and prompt them to illegally disclose such material," they wrote.
Both Fainaru-Wada and Williams say they won't comply with the subpoena, which means they could be fined and jailed until they reveal their sources if they lose their legal challenge. The reporters also could be jailed for a fixed term for contempt if U.S. District Judge Jeffrey White forces them to appear before the grand jury.
They face more jail time than any of the five BALCO defendants, as the largest prison term in the convictions was four months.
A hearing before U.S. District Judge Jeffrey White is scheduled for Aug. 4.
The government suspected the leak came from Victor Conte, BALCO's founder, who pleaded guilty to steroid distribution charges and was sentenced to four months. Agents last year searched his San Mateo house to bolster that view. Conte and others pointed to the government as the source.
According to the two reporters, Bonds testified that he used substances provided by his trainer, Greg Anderson, but said he thought it was flaxseed oil. Anderson was among the five defendants convicted in the BALCO probe.
The case is United States v. Fainaru-Wada, 06-90225.