Government leaks in Apple investigation underscore hypocrisy of BALCO press subpoenas
by Peter Scheer
Yet another reason the Justice Department should abandon its misguided effort to throw San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams into jail for refusing to name their confidential source in the BALCO case: Hypocrisy has its limits, even for the federal government.
I’m referring to recent stories in the Wall Street Journal and other media detailing the feds’ investigation into the backdating of stock option grants given to Apple CEO Steve Jobs. This information—which, like grand jury testimony, is supposed to be secret—was leaked to the press by a federal agency: either the SEC or, more likely, the US Attorney’s Office in San Francisco, which, ironically, is also handling the BALCO investigation.
Prosecutors, who are often politically ambitious, leak like colanders. Just ask any reporter who has covered a federal courthouse. And while I would be the last person to discourage government insiders from talking to the press, it is hypocritical in the extreme for prosecutors to engage in illicit leaking to reporters in one investigation, while simultaneously punishing reporters for their receipt of leaked evidence in another investigation.
The unifying principle seems to be that leaking is OK if it serves the government’s interest—for example, in pressuring the Apple board to get tough with Jobs—but that leaking is bad when, as in the BALCO case, it makes life difficult for the government.
While hypocrisy, no matter how brazen, is regrettably not grounds for quashing federal subpoenas, it is reason for the Justice Department to take stock of the case and decide that enough is enough.
It’s time to pull the plug on the contempt proceedings against Fainaru-Wada and Williams; and it’s time to free Josh Wolf, the freelance videographer who has been in federal detention since August for refusing to testify about his video tape of a 2005 San Francisco street demonstration that turned violent.