T
he
Chronicle
reporters had turned their grand jury scoops into a book,
Game of Shadows
, published by Gotham Books on March 23. Two weeks before,
Sports Illustrated
ran an excerpt with a cover photo of Bonds and the headline “The Truth: Barry Bonds and Steroids.” The book set off a renewed media furor over performance-enhancing drugs and professional baseball’s foot-dragging on the issue. Fainaru-Wada and Williams were guests on
David Letterman
. The book attracted glowing reviews and vaulted onto best-seller lists, reaching number two on the
New York Times
list. But the timing of the book, as investigators were still trying to identify who leaked the grand jury transcripts, only strengthened prosecutors’ determination to solve the mystery of the leak. To their credit, the authors didn’t pull any punches to curry favor with a Justice Department trying to uncover their sources. The book took aim at U.S. Attorney Ryan and his decision to offer the BALCO defendants such a lenient plea bargain, noting that “from first to last, Ryan had seemed to want to limit BALCO’s impact. He had decided to keep the names of the BALCO athletes secret. He had spurned USADA’s pleas for help and threatened to prosecute the reporters for publishing the leaked files.”
Soon after the book’s publication, the prosecutors turned to the Justice Department in Washington, which in May authorized them to issue subpoenas to Fainaru-Wada and Williams. Both reporters invoked the First Amendment and refused to testify. As in the Libby case, the investigating agents had obtained signed waivers from all the lawyers involved in the case releasing the reporters from any promise of confidentiality from everyone with access to the transcripts. Each person with access also signed a sworn statement that he or she was not the source. Neither the
Chronicle
nor its reporters made any attempt to gain the consent of their source. In their view, they had promised to protect their source, and to identify him now, with or without a waiver, would be a breach of that promise with dire consequences for the source and, in their view, information gathering in general. They were in a different position than Judith Miller, who couldn’t know whether or to what extent her testimony might damage her source. In their case, their testimony would obviously be damaging.
Barely more than a year after Miller was sent to prison, another major clash loomed between the courts and the press. Unlike the leaks by Libby, Rove, and Armitage, the
Chronicle
’s disclosures undeniably served a significant public interest: deterring the use of illegal performance-enhancing drugs by athletes. It corrected the U.S. Attorney’s arguably misguided decision to protect the identities of the star athletes who had used illegal steroids. Publication of the names of people who were national role models had a far more deterrent effect than punishment of little-known figures like Conte, Valente, and Anderson, people few had heard of or cared about. The
Chronicle
’s stories had prompted congressional hearings and a long-overdue inquiry into rampant illegal drug use in professional baseball.
As the
Chronicle
editorialized:
Journalists across the land have come forth in defense of
Chronicle
staff writers Mark Fainaru-Wada and Lance Williams, who are at risk of going to jail for doing their jobs. At stake is much more than the welfare of two decent men and diligent reporters who led the way on one of the biggest sports scandals in recent history–the pervasiveness of steroids and other illegal performance-enhancing drugs at the highest levels of athletic competition. . . . Journalists have an obligation to pursue these stories and sometimes the only way to get them is by guaranteeing anonymity to their sources. A democracy that cherishes a free press must respect the need of journalists to make and keep such promises.
But Miller had never asked to be told Plame’s identity. Libby had thrust it upon her in an effort to discredit Plame’s husband. In the BALCO case, Fainaru-Wada had evidently used all his considerable persuasive powers to gain access to the transcripts. In an e-mail to Conte seeking the CD-ROM containing all the secret grand jury transcripts, he wrote:
“So I checked my mail yesterday and I’m still waiting for that CD-Rom. Figured you were gonna Fedex it to me. Perhaps it will arrive tomorrow. Or the next day. Or the next. Or the next . . . OK, won’t hold my breath. . . .” And, a day later, “Frankly, I wanted to make a pitch about seeing some stuff and talking about a few things. . . . As to our email exchanges, well, the only way they end up in our paper is if/when you give me the green light. As with the CD-Rom, waiting, waiting, waiting.”
Raphael told the court that the reporters “were very likely participating in a crime.”
(The reporters counter that Fainaru-Wada was kidding around with Conte in the emails, as Conte often did. Fainaru-Wada said he had “no belief or expectation” that Conte would give him the CD-ROM or transcripts and wasn’t soliciting him to do so. )
The day of the hearing on the journalists’ motion to quash the subpoena, a crowd of journalists wearing T-shirts emblazoned “Sportswriters for Freedom of the Press” marched outside the courthouse. Both Fainaru-Wada and Williams made statements to Judge Jeffrey White, the federal judge overseeing the leak investigation. “I do not wish to spend even a minute in jail,” Fainaru-Wada said. “However, I cannot–and will not–betray the promises I have made over the past three years” to confidential sources.
Like other judges who considered the issue, Judge White was unmoved by the First Amendment or common-law appeals to the public interest. “When do we get to choose what laws we’re going to obey?” the judge asked. He held the reporters in contempt and ordered them jailed. But he agreed to stay the order until the Ninth Circuit Court of Appeals heard their appeal.
Ordinarily the prosecutors might have objected, but Hershman and Raphael were relieved that the judge granted the stay. The point of their investigation was to find the leaker, not to put journalists in jail. Raphael (himself a former journalist) felt agitated at the prospect, as he later put it. Surely the prospect of a prison term would lead the reporters to reconsider their silence, just as Judith Miller had changed her mind. Or surely Fainaru-Wada’s source would come forward, sparing the journalists a stay in prison. But the summer passed, and nothing happened.
TEN
“You’re a Snitch”
I
n Colorado, Troy Ellerman was busy promoting rodeo activities and seemed to have landed in his dream job, one far from the drug dealers and petty criminals he’d represented in Sacramento before hitting the big time in the BALCO case. As Larry McCormack pointed out to him, Ellerman was a “rock star” in the world of rodeo. McCormack was a former sheriff ’s deputy who had worked for Ellerman as a paralegal, a private investigator, and an expert witness for the past six years, and was closely involved in the BALCO defense. McCormack also counted himself one of Ellerman’s best friends. When Ellerman moved out to Colorado, McCormack accompanied him and became the rodeo association’s head of human resources and then chief operating officer. They were so close that friends teased them they argued like a husband and wife.
In late March, Ellerman dropped into McCormack’s office and tossed a signed copy of Mark Fainaru-Wada’s and Lance Williams’s new book,
Game of Shadows,
on his desk. “Mark said he wanted you to have this,” Ellerman said.
McCormack was pleased that Fainaru-Wada had remembered him and was eager to read the book. He liked Fainaru-Wada. So did Ellerman. There in Colorado, Ellerman often complained about the press coverage of the rodeo association. “I wish I could get a reporter like Mark,” he told McCormack. “He’s honest and he does his homework.”
Soon after the BALCO raid, McCormack, Ellerman, and Fainaru-Wada had met over lunch, which they ate outside at a park across from the old city hall in Sacramento. Ellerman had told the reporter that McCormack was the one he should be talking to, since no one knew more about the case. After that, Fainaru-Wada often made the drive from San Francisco to see Ellerman, and sometimes he and McCormack shot the breeze.
McCormack read the book straight through. He noticed some details he’d revealed, though he wasn’t mentioned by name or cited as a source, which was just as well. But what really caught his attention was one sentence referring to the U.S. Attorney: “Ryan wouldn’t comment on whether there would be more indictments, other than to say he hoped to indict ‘the individuals identified with the leaks.’ ”
The next day McCormack asked Ellerman if he’d read the book.
“No,” Ellerman said.
“Well, you should.” He read aloud the passage about Ryan and the leak.
Ellerman brushed off McCormack’s concern about the reporters. “They’ll never reveal their source,” he assured him. Ellerman told McCormack, as he had several times before, that he’d spoken to a lawyer, who had assured him the First Amendment would protect them from having to name their source.
“Then why do they keep losing in court?” McCormack demanded. “Troy, I’ve been in this business a long time. From their lofty perch they can say they’ll never give it up. They can cite the First Amendment. But you’ve got these white-bread, middle-class guys. When those big iron doors slam shut they’re going to sing like canaries. And your chances are quadrupled because there are two of them. Your chances of their keeping their mouths shut–it ain’t going to happen.”
“Well, if that happens, you’ll be here and I won’t,” Ellerman said.
“No, I won’t,” McCormack heatedly replied. “I’m also on the line here.”
Ellerman looked at him with a narrowed gaze. It was as if Ellerman was considering for the first time that McCormack might be a problem.
Despite their close proximity, McCormack had never witnessed Ellerman give Fainaru-Wada a grand jury transcript. There were many things Ellerman didn’t share with McCormack, and McCormack made it a policy not to get involved in things that didn’t concern him. But it hadn’t taken a genius to figure out what was going on. After Judge Illston launched the inquiry into the leak of Montgomery’s testimony in June, McCormack confronted Ellerman. “You’re going to get us in trouble. You shouldn’t be doing this. And you should never have involved me in it. Keep me out of this crap.” That’s when Ellerman first told him he’d been assured by lawyers that he didn’t have to worry.
After the much bigger leaks in December–right after visits to the office by Fainaru-Wada–McCormack was angry. How could Ellerman be so reckless? Coming just days after the hearing on the June leak, Ellerman was all but taunting Judge Illston. But Ellerman laughed about it. He seemed to be enjoying the furor. “That’s Troy,” McCormack later said. “Troy played the game very loosely. He always walked a fine line.”
Then the Justice Department had launched a formal investigation. McCormack read
SFGate.com
, the
Chronicle
’s website, every day for any news about the investigation. One day he heard from a former employee of Ellerman’s who said the FBI had contacted him. He didn’t know anything, but the investigation was widening. McCormack wondered how long it would be before the FBI called him.
After he read
Game of Shadows
, McCormack consulted a lawyer, who wasn’t very reassuring. He told him about something called “misprision of felony,” which is a crime under Title 18 of the U.S. Code:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
As McCormack put it, this “scared the hell out of me.” After this lawyer failed to devise a strategy for extricating McCormack, he hired Chris Wing in Sacramento. Wing told him it wasn’t enough to just be a witness to a crime; to be charged with misprision, there had to be some overt act of concealment. “I think you’re okay,” Wing said, which reassured McCormack somewhat. Still, what would he say if the FBI called him? He wasn’t going to lie, which was yet another crime.
As the leak investigation continued, McCormack’s close personal and professional relationship with Ellerman deteriorated. Ellerman had proposed moving the rodeo hall of fame from Colorado to New Mexico, a move backed by then-governor Bill Richardson and several million dollars in New Mexico revenue bonds. McCormack thought the idea was fiscally irresponsible, and they argued strenuously about it. Then Ellerman held a board meeting and excluded McCormack, which angered McCormack.
Soon after the board meeting about the move, Ellerman “berated” McCormack over the budget, then “stormed out” of his office. After that, Ellerman told McCormack he had a “shitty attitude,” slammed a binder on McCormack’s desk, and backed him into a corner, glaring at him in a “menacing” manner, according to a complaint against Ellerman and the rodeo association McCormack later filed in a Colorado court (the suit was subsequently settled). Though the two had often argued, this was unlike anything McCormack had experienced. McCormack feared for his safety. He got on the phone to a friend and said if Ellerman threatened him again, he was going to take a ceremonial shovel Ellerman kept in his office and “smack him in the side of the head.” The phone call was secretly recorded, as were several others in which McCormack allegedly threatened inappropriate behavior. Although McCormack claimed he was just letting off steam (“we’re cowboys, for God’s sake”), he was fired on August 30 for what the association characterized as issues of “anger management, decision making, use of alcohol, and financial mismanagement.”