If you thought Barry Bonds and Jason Giambi were the only people in the Balco steriods scandal guilty of bad judgment (or worse), apparently you haven’t been introduced to the brilliant technical minds at the U.S. Department of Justice.
In May, the Justice Department filed subpoenas against San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams demanding that they hand over their sources for articles they wrote that quoted from transcripts of various athletes’ sealed testimony before a grand jury. (The reporters aren’t protected by California’s shield law, which does not apply to federal prosecutions.) The reporters filed a legal motion challenging the subpoenas, and on Wednesday Justice responded with a counter-filing — which, in the process, managed to expose one of the very sources at issue in the case.
In the paper version of the filing released to the public, Justice redacted a number of passages. But in a screw-up that has plagued the agency before, the redacted passages can be viewed by pasting the document into a word processing program.
Oops.
The redacted material, as the New York Sun‘s Josh Gerstein reported, gives details of emails between the Chronicle‘s Fainaru-Wada and Victor Conte Jr., the founder of Balco, in which Conte, perhaps joking, alludes to handing over “a copy of the indexed CD rom that contains all 30 thousand pages of evidence. [sic] How would you like that? Just kidding.” (The New York Times published the un-redacted filing [1 MB PDF] on its Web site.) Fainaru-Wada replied, writing, “Wondering if you should even joke about that; I’ve become somewhat paranoid about e-mail these days. My wild imagination at work.” Three days later, Fainaru-Wada wrote Conte again: “Well, maybe there’s another way of some sort to communicate; either pay phone or cell or even meeting that would provide more comfort. Frankly, I wanted to make a pitch about seeing some stuff and talking about a few things . . .” Just three days after that email, the first of the articles at issue in the case appeared, reporting testimony by sprinter Tim Montgomery. Conte has denied that he was the source of the transcripts.
Naturally, the reporters’ battle to maintain the anonymity of their sources was rendered at least partially moot by the Justice Department’s goof — if it was indeed a goof. The New York Times today quotes Eve Burton, vice president and general counsel of the Hearst Corporation (owner of the Chronicle), who seems a bit suspicious. “It is our hope,” she said, “that the government did not leak the document.” If the release of the documents with the insufficiently redacted material wasn’t a mistake, then it was a bold move to try and force the hand of the Chronicle and its reporters.
Meanwhile, the Chronicle, rightly, is standing by its reporters and their refusal to expose their sources. Even if the Justice Department is doing it for them.
Paul McLeary is a former CJR staff writer. Since 2008, he has covered the Pentagon for Foreign Policy, Defense News, Breaking Defense, and other outlets. He is currently a defense reporter for Politico.