Bush administration prompts subpoenas of San Francisco Chronicle
reporters in BALCO leak case
By Julia Cheever, Bay City News Service
June 21, 2006
SAN FRANCISCO (BCN) - U.S. Justice Department lawyers
told a federal judge in San Francisco today that a leak of secret
grand jury transcripts in a sports steroid case "is no insignificant
The federal attorneys wrote in a brief submitted to U.S. District
Judge Jeffrey White, "The criminal violations at issue here
strike at the very heart of the secrecy of grand jury proceedings
and the integrity of the judicial system."
The government attorneys asked White to allow them to go ahead
with subpoenas that would require two San Francisco Chronicle
reporters to disclose how they got grand jury transcripts of a
probe into the so-called BALCO case.
White will hold a hearing on Aug. 4 on a request by reporters
Lance Williams and Mark Fainaru-Wada that he quash the subpoenas.
If the subpoenas are left in place, Williams and Fainaru-Wada
would be called to testify before a recently convened grand jury
that is looking into the leak of transcripts from an earlier grand
jury that investigated the BALCO case in 2003.
In the BALCO case, Bay Area Laboratory Co-Operative founder Victor
Conte and three other men were indicted by the earlier grand jury
in February 2004 on charges of giving illegal steroids to professional
The four men eventually pleaded guilty to reduced charges and
were given sentences ranging from probation to eight months in
Beginning in June 2004, the two reporters published articles
that were purportedly based on transcripts of various athletes'
testimony before the grand jury.
U.S. District Judge Susan Illston, the judge presiding over the
BALCO case, ordered an investigation, which is being led by the
U.S. attorney's office in Los Angeles on behalf of the Justice
It is not illegal for reporters to publish alleged grand jury
information, but it is illegal for certain parties in a grand
jury proceeding to disclose information about it. Those who are
bound by the confidentiality rule include the members of the grand
jury, members of the prosecution team, court stenographers and
any defense lawyers and their clients who have been given copies
of transcripts. Violations of the rule can be punished as contempt
In the summer of 2004, all prosecution lawyers as well as all
defense lawyers and clients who had been given copies of the transcripts
signed sworn statements saying they had not been responsible for
Lawyers for the two reporters argued in a brief filed with White
last month that the subpoenas were unreasonable because there
is "no serious crime" at issue and because the public
was allegedly well served by the reports on steroid use.
The reporters also argued the subpoenas would harm their free
speech rights and their relationships with confidential sources.
But the government brief contends that rulings by the U.S. Supreme
Court and a U.S. appeals court in San Francisco have said that
reporters do not have a federal free speech right to refuse to
testify before a grand jury.
The brief also argues that even if such a right were created,
the public's interest in having the law enforced would outweigh
the reporters' rights.
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