The BALCO reporters had a slimy source, we now know. Did the reporters also get slimed?

By Peter Scheer

Lance Williams and Mark Fainaru-Wada can’t get a break. For nearly a year the San Francisco Chronicle reporters lived under the constant and very real threat of imprisonment–like a sword of Damocles over their heads–for their refusal to name their source for grand jury testimony in the BALCO steroids-in-sports investigation.

Finally the sword lifted, as the Justice Department arrested, charged and convicted Troy Ellerman, an ethically-challenged lawyer for some BALCO defendants, for leaking grand jury testimony to the reporters. But now Williams and Fainaru-Wada find themselves under attack again, this time from fellow journalists who argue that the reporters protected a slimy source and, in the process, allowed themselves to be slimed.

Critics like Los Angeles Times’ Tim Rutten, Slate’s Jack Shafer, and Center for Citizen Media founder Dan Gillmor (who is also a CFAC director), say the reporters (and their editors) showed bad judgment in relying on a demonstrably partisan source with a clear interest in derailing the government’s investigation.

Worse, say the critics, the reporters crossed a line once Ellerman used the reporters’ stories to actively mislead the court – by lying about his role, and by claiming the government was leaking to the press in order to taint the jury pool. By continuing to use (and be used by) Ellerman after those misrepresentations, the critics contend, the reporters became complicit in the lawyer’s manipulation of the justice system.

There’s no denying that the reporter-source relationship here was problematic (to put it mildly). But despite the moral ambiguities inherent in the interactions between a reporter and a source who has been promised confidentiality, I can’t say that I would have done anything differently than Fainaru-Wada and Williams.

Anonymous sources usually stay anonymous. Because government leak investigations almost never result in exposure of journalists’ confidential sources – Ellerman and Lewis “Scooter” Libby, although very much in the news at the moment, are conspicuous as exceptions – our expectations about both reporters and sources rarely confront reality. As a result, those expectations can be unrealistic.

Reporters are not philosophers. They are more like cops. Like cops, reporters try to piece together, from all available evidence, an accurate version of an event. Cops rely on “informants,” which is a euphemism for a witness who is often involved in the same crimes the police are investigating. An informant’s veracity is questionable. His motives for talking to the police vary, but rarely include a desire to see justice done.

Reporters talk to “sources.” If the story they are working on involves misconduct by powerful people (whether in government, the private sector, or organized crime), a source with knowledge of the misconduct is unlikely to discuss it without a promise of confidentiality. The source may be an innocent witness or may be deeply involved in criminal activity. Knowledgeable sources have many possible motives for talking to a reporter, but altruism is rarely one of them.

Although reporters should understand a source’s motives in order to assess his truthfulness, they needn’t make any other judgment about the source as long as they can satisfy themselves that his information is accurate – accurate in spite of those motives. Their overriding objective is simply to write a story that is factually correct.

Williams and Fainaru-Wada were confident that the grand jury transcripts they were shown by Ellerman, and from which they copied verbatim testimony of key witnesses, were genuine. Ellerman’s desire to abort the investigation, his willingness to lie to the court and to use the reporters for his own purposes, were reasons for Williams and Fainaru-Wada to shower after being with him. However, they didn’t affect the accuracy of the information he provided.

But should the reporters have exposed Ellerman when he lied to the court and claimed that the leaks – his leaks – deprived his clients’ right to a fair trial? Should the reporters have severed their relationship with him rather than returning to his office to copy still more grand jury testimony for their articles? The answer, in my opinion, is No.

The hard choice for the Chronicle was the decision to run articles based on what the editors knew to be illegally leaked grand jury testimony. Grand jury secrecy is not a trivial principle. Having made that fateful decision, however, there is no particular reason to draw an ethical line at later points when Ellerman engaged in further acts of deception. These later offenses were incremental. They did not differ in kind from the initial offense of violating grand jury secrecy.

This analysis, of course, begs the question whether the Chronicle was justified in its decision to run the BALCO stories in the first place. There are historical precedents: Daniel Ellsberg’s leak of the Pentagon Papers included classified information. The Washington Post’s early stories about Watergate involved leaked grand jury testimony. Are revelations about professional athletes’ drug use in the same league?

I’m not sure. Now that the threat of jail against Williams and Fainaru-Wada has been removed, we can, for the first time, have an open debate on that very question.