Instead of Charging Barry Bonds, Attorney General Wants To Throw Reporters In Jail

05/25/2011 11:50 am ET

As much fun as it was to see neo-con accomplice Judy Miller get her just desserts last summer, the federal government's service of subpoenas on San Francisco Chronicle writers Lance Williams and Mark Fainaru-Wada demonstrates the danger of giving the Attorney General the unfettered power to allow any reporter to be hauled into court and required to reveal confidential sources. Particularly this Attorney General.

Williams and Fainaru-Wada wrote the celebrated Chronicle articles detailing the grand jury investigation in Northern California federal court into steroids in sports. They also wrote the recent book, "Game of Shadows," on the same subject. Most famously, the articles and the book discuss the use of steroids by Barry Bonds. Neither work would have been possible without access to grand jury transcripts that were supposed to be secret, although such transcripts are not secret in many states, including California.

The articles by Williams and Fainaru-Wada did not cause the disclosure of a covert operative, black prison sites or a widespread domestic eavesdropping program. They did, however, lead directly to the memorable congressional hearings where Mark McGuire made a fool of himself avoiding questions and Rafael Palmiero, later suspended when he tested positive for the steroid Winstrol, angrily pointed his finger at the showboating Congressmen and denied using illegal drugs. The hearings led to the extreme toughening of Major League Baseball's steroid policy, generally considered a good thing.

This is not a frolic by an embarrassed local prosecutor. Under federal regulations (28 CFR sec. 50.10), a subpoena to a journalist must be approved by the Attorney General himself. Indeed, Attorney General Alberto Gonzales defended the subpoenas in a meeting with the Houston Chronicle editorial board as, "the appropriate thing to do." Gonzales is quoted in the article as saying that the fact that something good came out of the articles was not important. What was important was that "I think it was information that was necessary, that we needed to have in connection with [the investigation about the leaked transcripts]."

Gonzales apparently refused to explain the standards he used to make the determination that forced disclosure would be in the public interest and should override the writers' ability to gather news. One can at least understand why the government believes that the revelation of classified material is serious and would push for testimony from journalists. But here, the resulting hearings are generally considered to have been beneficial and the public's knowledge was increased about the circumstances under which Bonds is assaulting the sport's most revered records. All good.

The federal guidelines for such subpoenas recognize that "[b]ecause freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues." The Attorney General is required to "strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice."

How can these steroid subpoenas possibly meet this test? Certainly Bonds has been embarrassed by his testimony that he believed the performance enhancing substance he was rubbing on his body was flax seed oil, but this cannot be enough to imperil the ability of reporters to acquire information and inform the public.

The government's embarrassment that it has not managed to prosecute Bonds may be closer to the mark. Bonds and Jason Giambi were excused from appearing at the March 2005 hearings, presumably because they were about to be named in complaints. I am okay with their not being charged, especially Giambi who, unlike Bonds, is generally considered to have testified truthfully, but only someone with Gonzales's proven lack of judgment can think that the writers should go to jail.

Fortunately, the Ninth Circuit Court of Appeals, which includes California, has established a broad qualified privilege for reporters that should allow the judges deciding this matter to weigh the importance of the evidence sought. Even the D.C. Court of Appeals judges who decided the Judy Miller case each, to a greater or lesser degree, rested their decision on the importance of the evidence being withheld. Those of us who have represented reporters have always argued that Justice Lewis Powell's concurrence that supplied the needed fifth vote in the U.S. Supreme Court case Branzberg v. Hayes established a qualified privilege that gave reporters more protection than others called to testify. It could be make or break time for that theory, which has been in decline recently in the courts.

Less likely to assist these reporters is the "Free Flow of Information Act of 2006," introduced May 18th, mainly because it won't pass. The bill, introduced by a bi-partisan group of Senators including Lugar, Specter, Dodd, Graham and Schumer, would provide a qualified privilege for reporters and require the government to show that (1) it has exhausted all alternate sources, (2) has reason to believe the information is relevant, (3) the information is critical to the case, and (4) the public interest in disclosing the confidential source outweighs the public interest in newsgathering and maintaining the free flow of information.

This last part would allow a judge to throw Miller in the slammer and let the Chronicle reporters go on their way. I can root for that as a reasonable compromise, because judges should be in charge. However, many reporters advocate an absolute privilege, apparently an unattainable goal at this point. In any event, Lance Williams and Mark Fainaru-Wada should not be expected to rat on their sources.