|By Beth Schwartzapfel ’01|
The First Amendment of the U.S. Constitution was not at the forefront of Lance Williams’s mind when he heard in September 2003 that a caravan of unmarked Buicks containing U.S. Internal Revenue Service investigators had pulled up in front of a strip mall in the San Francisco suburb of Burlingame.
Still, Williams ’72 was a seasoned investigative reporter who believed in the public’s right to know what its government is up to, and in the power of the press to find out. As far as anyone knew, the Bay Area Laboratory Cooperative, or BALCO, was a vitamin company. Yet here were all these federal agents raiding its headquarters.
“We called the IRS and said, ‘What are you doing?’” recalls Williams, a reporter for the San Francisco Chronicle. The reply was that the Buicks were part of an “enforcement action.” The officials refused to provide any more information.
Williams clicked into action. During his more than thirty years as a reporter, he’d developed an impressive knack for uncovering information that other people preferred to conceal. During the 1980s, for example, he reported on the rise of violent crack gangs in Oakland, gaining firsthand information about how they operated on the street; later Williams was told that the FBI had used his stories to begin infiltrating the gangs and curbing their violence. During the 1990s Williams wrote stories exposing top University of California officials for secretly padding their own pay and benefits packages while the university system was having trouble balancing its budget. These stories prompted the resignation or retirement of the guilty parties as well as a university ban on the types of retirement packages the executives had fashioned for themselves.
Eight years ago, Williams, who then worked for the San Francisco Examiner (it merged with the Chronicle in 2000) reported on a pharmaceutical company that had shipped contaminated sutures all over the country. His stories identified serious failures in the U.S. Food and Drug Administration’s system of oversight and product recall, proved the company had downplayed the sutures’ dangers, and helped hundreds of patients understand why their routine surgeries had caused debilitating infections.
The series relied on leaks—secret information provided by an insider—and in this case, documents that a court had ordered sealed. As with all investigative reporting, Williams extracted the secrets by promising to protect the identity of the leaker at all cost. It was a journalistic practice that would later come close to landing Williams in jail himself.
In September 2003, Williams and Mark Fainaru-Wada, his partner on the Chronicle’s investigative team, began publishing articles about the events that were unfolding in Burlingame. Because federal officials were so tight-lipped, Williams says, “a lot of the given facts of the case were actually things [we] had to dig out. Like, that there was a grand jury. That it was a steroids investigation.”
Over the next two years the men wrote more than 100 articles reporting that the IRS, the FDA, the local Narcotics Task Force, and the U.S. Anti-Doping Agency had been conducting an investigation into four men: an Olympic track coach, the weight trainer for San Francisco Giants outfielder Barry Bonds, and two BALCO executives, including the company’s mastermind, Victor Conte. They reported that Conte was using his vitamin and supplement company as a front for his real business: providing professional and Olympic athletes with performance-enhancing drugs that were undetectable by standard doping tests and then carefully managing the athletes’ drug regimens.
Williams and Fainaru-Wada wrote that a federal grand jury had been convened and that star players were being subpoenaed to testify against BALCO. Then, in a stunning series of reports, Williams and Fainaru-Wada published the secret grand jury testimony of Bonds, Olympic track star Tim Montgomery, New York Yankees first baseman Jason Giambi, Detroit Tigers outfielder Gary Sheffield, and others. In the transcripts, which described the widespread use of steroids in baseball, some of the athletes openly admitted doping themselves. (The reporters later collaborated on a book, Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports, whose paperback edition was released in March.)
Prosecutors, however, were furious. Grand-jury investigators rely on secrecy to persuade people to cooperate. Someone had broken the law by breaking that bond of secrecy and providing Williams and Fainaru-Wada with testimony from the BALCO investigation. Defense lawyers were angry as well. Attorney Troy Ellerman, who represented two BALCO defendants, filed a motion to dismiss the charges against his clients on the grounds that a fair trial was now all but impossible. Investigators asked Williams and Fainaru-Wada to turn over their notes and name their informants. The reporters refused. That prompted the U.S. Attorney’s office in Los Angeles to open an investigation into who had leaked the grand-jury transcripts.
In May 2006, Williams, Fainaru-Wada, and Chronicle officials received subpoenas to testify before this newly convened federal grand jury focusing on the BALCO leaks. Again they refused. A judge then cited them for contempt, and last September he sentenced them to prison. After the reporters and the Chronicle appealed, the judge agreed to keep Williams and Fainaru-Wada out of jail until their appeal could be heard. “I despair for our free press if we go very far down this road,” Williams told the judge. “Whistle-blowers won’t come forward. Injustices will never see the light of day. Our people will be less informed and worse off.”
The BALCO stories pitted the public’s right to know about the actions of government officials against those officials’ right to pursue an effective investigation into suspected law-breaking. Does the First Amendment guarantee of freedom of the press trump prosecutors’ duty to maintain the integrity of the grand-jury system?
The answer for the past three decades has been ambiguous. Thirty-one states, including California, have given precedence to the First Amendment by establishing shield laws that grant journalists immunity from subpoenas and establish a reporter’s right to keep sources confidential. But thanks to a 1972 U.S. Supreme Court case, federal law differs from this approach. That decision, Branzburg v. Hayes, affirmed by a 5–4 vote that reporters do not have special rights not given to other citizens and that they may indeed be compelled by subpoena to testify before a federal grand jury. The justices emphasized, however, that the decision was of a “limited nature,” and that any such situation should be decided on a case-by-case basis.
For decades lower courts interpreted this decision to mean that, although reporter privilege did not apply in the specific case the justices examined, it could very well apply in others. In 1980 the U.S. Department of Justice established a set of internal guidelines, that, although not legally binding, suggested that a journalist can be subpoenaed after all other means of obtaining information have been exhausted. Even then, the guidelines specified that this should occur only in “exigent circumstances,” and only with the approval of the U.S. Attorney General. Mark Corallo, who from 2002 to 2005 was director of public affairs for the justice department under Attorney General John Ashcroft, said in a 2006 Frontline interview, “‘Exigent circumstances,’ when I arrived, they were explained to me to be grave national security matters or instances of really life and death or physical harm to people.”
Spokesman Thom Mrozek of the Los Angeles U.S. Attorney’s office points out that in 2005 the deputy attorney general told Congress “exigent circumstances” permit “compulsion of additional types of evidence if it is apparent that there are no other sources to obtain the information and that the information is otherwise essential to the case.” For about thirty years, says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, justice department policy remained consistent. “It’s only been recently,” she says, “that they seem to have gotten this aggressive.”
In addition to Williams, two Brown alumni journalists have been prominent targets of this new, more aggressive approach. In 2001, for example, a planned FBI raid on an Islamic charity called the Global Relief Foundation was stymied when New York Times reporters Philip Shenon ’81 and Judith Miller, who’d learned of the raid, called foundation officials for comment beforehand. U.S. Attorney Patrick J. Fitzgerald, who would later become well-known for his prosecution of vice presidential chief of staff I. Lewis “Scooter” Libby, ordered the journalists to turn over their telephone records so he could determine who’d leaked them news of the upcoming raid. (The case remains unresolved.)In 2003 New York Times reporter James Risen ’77 was one of six journalists subpoenaed in the case of Los Alamos nuclear scientist Wen Ho Lee, who was accused of supplying nuclear-weapons secrets to the Chinese government. Relying on leaked information, Risen reported on March 8, 1999, that Lee had been fired that day and was “the prime suspect in a nearly three-year investigation of reports of Beijing’s theft of nuclear technology.” Lee was eventually cleared of all spying charges and agreed to a plea bargain that included admitting to the felony of downloading restricted data. Lee then accused the government of violating the Privacy Act by leaking information about him to the press and asked a judge to subpoena reporters to prove his case. The reporters refused to respond in court. (Their news organizations eventually agreed to contribute $750,000 toward a $1.6 million settlement between Lee and the federal government.)
The most aggressive prosecution of a reporter occurred in 2005 as part of the perjury trial of Scooter Libby. Libby was accused of lying when asked whether he had leaked the name of CIA operative Valerie Plame to reporters. In this case, reporters were compelled not simply to reveal their sources, but to testify against them—to name them as leakers in a court of law. Ultimately, Miller spent eighty-five days behind bars for refusing to disclose her source for the Plame leak. (Libby, by contrast, was convicted of lying and obstructing a leak investigation, but served no jail time, thanks to a commutation ordered by President Bush.) More troublesome was the fact that of the nineteen witnesses in the trial, ten were members of the press called in to discuss the leak, “a spectacle that would have been unthinkable only a few years ago,” wrote legal reporter Adam Liptak in the Times.
In the BALCO case, the longest sentence doled out to the four men convicted of illegally providing steroids was four months. Last September, however, after Williams and Fainaru-Wada were held in contempt of court for refusing to name their sources, they were sentenced to jail terms of up to eighteen months.
Mrozek insists that this was not an attack on the press or a free-speech issue. The justice department, he says, viewed it “as an investigation into the willful violation of a very specific court order and whether, after exhaustion of other investigative leads, members of the press could provide information as to who committed this criminal act. Based on the government’s investigation, it appears that members of the press were aware who committed this act and stood by while that person repeatedly lied to the court and to the press about his role in the matter.”
Lance Williams is a tall, long-limbed man with silver hair parted on one side, a closely-trimmed goatee, and wire-rimmed glasses. His work clothes lean toward the neatly casual, and he lives in the ultra-mellow San Francisco Bay city of Berkeley. His speech is correspondingly mellow and disarmingly friendly; his quirky, dry sense of humor sometimes makes it difficult to discern whether or not he’s joking.
Williams often downplays his successes and portrays himself as an affable-but-goofy guy who keeps getting lucky on stories—or, at most, who keeps plugging away until he stumbles on the right answer. (During a recent visit to campus, he told a group of Brown Daily Herald reporters, “I’m living proof that even if you don’t do too much in college, you’ll be able to get a job and keep it. Even stay out of prison.”) In fact, one of his strengths as a reporter is making potential sources feel as if they’re talking to an old friend, not a reporter. “He puts people at ease, in a very Midwestern sort of way,” says Fainaru-Wada. “He has a phrase he uses, when he’s talking to people: ‘We’re just talking here.’ People know he means, ‘I’m not going to pressure you; I just want to talk to you about this.’ We sit close enough [to each other in the newsroom] that I must hear it half a dozen times a day: ‘We’re just talking here.’”
The BALCO investigation was the first sports story Williams had ever worked on. (He jokes that Fainaru-Wada had to teach him how to spell RBI.) In fact, Williams never set out to become a journalist of any sort. When he arrived at Brown from his hometown of Cincinnati in 1968, he had little direction, but knew he liked to write. “I wasn’t anything special at Brown,” he says. “I thought I wanted to be an English professor, maybe.” He changed his mind after spending his junior year at University College, London, where, he says, “I got to see industrial-strength English departments in action. I realized I just didn’t have it in me.”
He graduated in 1972. His then-girlfriend (now wife), Barbara, had just graduated from Stanford, so, with nothing better to do, Williams says, he “chased this gal” to San Francisco, where he got a job in a warehouse. One of his Brown English professors, the late Roger Henkel, who’d been an influential editor in San Francisco before becoming an academic, suggested Williams check out the journalism school at UC Berkeley. “In those days,” recalls Williams, “the University of California was really cheap. I had no idea if that was what I wanted to do or not, but I knew I could afford the tuition.” In 1973, after earning a journalism degree from Berkeley, Williams landed his first reporting job at the Hayward Daily Review, from which he progressed to the Oakland Tribune and then the Examiner.
By 2006 Williams and his colleague Fainaru-Wada had become a journalistic cause célèbre. The night before his sentencing hearing last September, Williams stayed late at his office, looking through the affidavits that had been filed in support of him and Fainaru-Wada. One was from Carl Bernstein, who, along with Bob Woodward, had broken the Watergate story for the Washington Post thirty years ago. They had famously relied on leaks from Deep Throat, whose identity remained a secret for decades; without the leaks, the pair might never have gotten to the bottom of the story, and Richard Nixon might have left the White House an honorable statesman. Another note was from the assistant executive director of the organization that governs California’s high-school athletes, who said that the Chronicle’s stories had, in part, prompted the organization’s new steroids policies. In addition, former major league baseball commissioner Francis “Fay” Vincent had written to the court that “Mr. Fainaru-Wada and Mr. Williams have done a service by naming names and bringing national attention to the major crisis now facing America’s Pastime.” Most heartbreakingly, Williams had before him affidavits from the parents of two young ballplayers who’d committed suicide as a result, their parents are convinced, of depression brought on by steroid use. From his office Williams sent Fainaru-Wada an e-mail. “Whatever happens,” he wrote, “I’d do it again tomorrow.”
Williams insists that relying on leaks is sometimes the only way to penetrate what he views as excessive secrecy. “We’re trying to provide people with independent information about what their government’s doing,” he says. “I think the First Amendment guarantees that to people. The justice department spent millions in taxpayers’ funds, and then didn’t want to tell anybody what they were up to.” Although many officials at the time were criticizing steroid use by athletes in general, no one was naming any of them. Yet Williams felt strongly that, as role models for many young people, athletes should be held up to closer scrutiny. By publishing the names and the testimony of players caught up in the world of doping, Williams says, he and Fainaru-Wada were holding players accountable in a way that the government seemed loath to do.For his part, James Risen is concerned about both the increasingly secretive nature of government and the effect of reporter prosecutions on journalism. An investigative reporter who has been covering the CIA for more than ten years, Risen, along with his Times colleague Eric Lichtblau, was the first to document the National Security Agency’s practice of spying on Americans’ domestic telephone calls without warrants, a story for which he received the Pulitzer Prize.
“The Bush people are just completely different from anything I’ve ever seen,” he says. “They’re much more secretive. They really hate the press. I don’t think ‘hate’ is too strong a word. They’re willing to do things like start a federal grand jury to investigate reporters, threaten to use the espionage act against reporters.” A grand jury was, in fact, convened to investigate who leaked Risen and Lichtblau the information about the warrantless wiretapping program; the men have not been subpoenaed for the case so far, but Risen says he, like Williams, is prepared to go to jail rather than reveal his sources. “That never was something you had to worry about before,” he says. “You didn’t have to worry under Clinton about going to jail as a reporter.” Yet he believes that journalists are not the real target of such prosecutions. “I think what they’re really trying to do,” he says, “is make it so anybody in the government is afraid to talk.”
Williams and Fainaru-Wada agree. “It’s certainly impacted who’s willing to talk to us,” says Fainaru-Wada. Given the notoriety he and Williams now have, he says, “People are fearful. This whole ordeal makes people stand back and think twice about whether they want to be whistle-blowers.”
Reporters, too, are standing back and thinking twice. “The balance you now engage in is whether the story is worth the risk of having to defend, and potentially go to jail,” says Eve Burton, who as general counsel for the Chronicle’s parent company, the Hearst Corporation, represented Williams and Fainaru-Wada in court. “If the story isn’t tremendously important to the public interest, or if the reporter has a young family, you give a second thought to it.” Hearst owns more than two dozen newspapers, magazines, and television networks, so Burton’s view is widely influential.
After his sentencing, Williams had some difficult conversations with his family. His wife and their two children—who were eighteen and twenty-four at the time—were familiar with the life of a journalist, but they weren’t prepared for this. “‘Why are they doing this to you?’ That was what my wife and kids wanted to know,” Williams recalls. “‘Why would they go after a subpoena in a baseball case?’ And I never had a satisfactory answer for them, because I don’t think they ever gave us a satisfactory answer. All they said was they had the right to do this and the power to do this, and they were going to do it.”
Thom Mrozek disputes that the reporters’ case was ever about sports. “This is not a case about baseball,” he says. “Our investigation focused on the willful and repeated violation of a court order. These are crimes that strike at the very heart of the justice system.”
As it turned out, Williams and Fainaru-Wada did not have to reveal their source after all. In February he came forward on his own, prompting the judge to drop the contempt charges against the two reporters. But the source’s identity prompted a new wave of second-guessing, this time from some media critics.
Although Williams and Fainaru-Wade won’t confirm that he was the leaker, BALCO attorney Troy Ellerman admitted that twice in 2004 he’d allowed Fainaru-Wada to take verbatim notes in his office of the grand jury testimony. Yet Ellerman is the same defense lawyer who’d earlier decried the leaks, telling the New York Times that “the jury pool has been infected and our right to fair trial has been jeopardized.” He had even filed a motion to dismiss the charges.
If Ellerman is telling the truth, Fainaru-Wada returned to the attorney’s office at least once after Ellerman had filed his motion to dismiss, putting him and Williams in an ethically tenuous position: Ellerman was simultaneously leaking information, pretending he was outraged at the leak, and then using his feigned outrage to his legal advantage. The reporters knew it, and used the information anyway. Had readers known who was supplying the leaks and why, they might have viewed the reporters’ work differently. “That is literally the only thing about this case that gives me pause,” says Lucy Dalglish of the Reporters Committee for Freedom of the Press. “I’m disappointed.”
In a column written shortly after Ellerman’s disclosure, Los Angeles Times media columnist Tim Rutten argued that the journalists were using Ellerman to get a good scoop, without regard for his ethically dubious behavior. “Conspiring with somebody you know is actively perverting the administration of justice to your mutual advantage,” wrote Rutten, “is a betrayal of the public interest whose protection is the only basis on which journalistic privilege of any sort has a right to assert itself.”
Slate media critic Jack Shafer argued that the reporters must have made a calculated decision that the information was important enough for them to hold their noses to obtain it. “That Ellerman was a special kind of sleaze surely occurred to the Chronicle reporters,” Shafer wrote. “I’m sure they regarded him as a treacherous force, but one whose perfidy served their ends, and that those ends advanced the common good as they understood it—i.e., they had a duty to inform the public of the illegal use of drugs in sports and of the many lies told by the athletes and their employers on the subject.”
The controversy underscores the murkiness underlying the practice of using leaks in journalism. Of course, there isn’t a leaker on earth without some sort of ulterior motive. Williams argues that it isn’t a reporter’s job to police a source’s motivations, only to confirm whether the information is true and worth sharing. “To me, the question is always, ‘Do we have true info?’” he says. “I don’t have a problem talking to a person who has true information, granting them anonymity. The issue for the paper, and for the reporter, is: is it interesting enough to use?
“Some people talk about how, [if you establish] a confidential source relationship, and then a source deports themselves in ways that you don’t care for, then you should out them, or say, the deal’s off,” he says. “But once you grant them confidentiality, you’ve made a promise. You’d better keep it.”
Beth Schwartzapfel is a BAM contributing editor.