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NEW YORK - Watergate investigative reporter Carl Bernstein and a top aide to former U.S. Attorney General John Ashcroft agree: the feds should lay off the two San Francisco Chronicle reporters who broke most of the BALCO steroid bombshells.
The award-winning reporters ordered to name their secret sources filed a motion on Wednesday to quash the government's subpoenas, along with affidavits from some heavy hitters who say the public good that came from their reports far outweighs the harm of the leaking of the testimony.
The reporters, Mark Fainaru-Wada and Lance Williams, could face jail time if they refuse to identify their source or sources.
Mark Corallo, who was the Justice Department's director of public affairs under Ashcroft, argues in his affidavit that his old boss would never have subpoenaed the reporters.
"It did not meet our standard," Corallo told the New York Daily News on Wednesday. "We had a standard for taking this very grave step: imminent danger, in which innocent people could be harmed or in which the national security could be harmed.
"We understood that the law favored a prosecutor who wanted to subpoena a reporter, but we understood that the law is not always right in these matters, that there's a bigger picture, the principle of the freedom of the press that is essential to this nation's existence."
Corallo, who now runs a private media firm, said he was not speaking on Ashcroft's behalf. His affidavit is joined by submissions from, among others, Bernstein; U.S. Rep. John Sweeney (R-N.Y.), one of Congress' most fervent anti-steroid crusaders; former baseball commissioner Fay Vincent and Denise Garibaldi and Don Hooton, parents of two high school athletes who committed suicide after extensive steroid use.
Fainaru-Wada and Williams, the Chronicle reporters who co-authored the blockbuster book "Game of Shadows" in addition to their newspaper reports, were ordered last month to appear before a Los Angeles grand jury to explain how they got the secret grand jury testimony of Barry Bonds, Jason Giambi and others, which they began publishing in December 2004.
Fainaru-Wada and Williams' attorneys argue that while there is no federal statute relating directly to their case, legal precedent and Department of Justice policy say that a balancing test should be applied and the following question should be asked: Does the court's interest in secrecy outweigh the public's interest in the reporters' coverage of the BALCO case - work that has even drawn praise from President Bush?
Fainaru-Wada and Williams did not violate the law by publishing the material, but whoever leaked the information may have. Fainaru-Wada and Williams would be prosecuted for contempt if they refuse to cooperate. (The Senate is considering a federal shield bill that would protect reporters from being forced to disclose confidential sources in most circumstances.)
Spokespersons for Attorney General Alberto Gonzales couldn't be reached for comment, but in a recent interview with the Houston Chronicle, Gonzales said the only issue at stake is whether a law has been violated.
"I'm not sure that should be the test as to whether, as a result, something happened that was a good thing," said Gonzales, who authorized the issuance of the subpoenas.
In addition to protection under the First Amendment, the reporters also argue that the government made the issue of grand jury secrecy irrelevant when it released 30,000 pages of documents, including grand jury transcripts, to the defendants in February 2004, before the Chronicle stories were published. Even though the defendants were ordered to keep the information secret, the government had moved the material out of the realm of the grand jury, said Eve Burton, an attorney for the Hearst Corp., which owns the Chronicle.
"You can't put the genie back in the grand jury bottle," she said.
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(c) 2006, New York Daily News. Distributed by Knight Ridder/Tribune News Service.
