The Sports Curmudgeon

I’m not going to make any new friends today, but that is sort of what “curmudgeon-ness” is all about. I want to hold up a big bright caution flag with regard to what seems like universal calls for the two San Francisco Chronicle reporters to be free of any jail time for failing to respond to subpoenas and to reveal their source(s) as part of the BALCO investigation. Let me be clear; I am not saying they should be thrown in jail never to see the light of day again until they not only reveal their source(s) but also do so in a self-humiliating style and situation. I’m not asking that they suffer; I only mean to say that this particular situation is full of shades of gray and not all of those shades have been examined so far in the coverage given this matter.

Allow me to reset the situation. Lance Williams and Mark Fainaru-Wada of the San Francisco Chronicle came into possession of testimony given to the Federal grand jury investigating BALCO, the people who made/supplied steroids illegally to athletes and other patients and some of the professional athletes who allegedly have used those steroids. In addition to reporting in the paper from those transcripts, they added to that information and wrote a book, Game of Shadows. As I understand the law here, the reporters committed no crime by possessing the transcripts; the person(s) who gave them the transcripts did commit a crime. When subpoenaed, the reporters refused to testify as directed by the judge and so they now may be held in contempt of court until they choose to comply with the judge’s order or the grand jury is dismissed or the judge changes his/her mind about incarcerating these reporters. That’s where we are now; the reporters are appealing the ruling that they must testify with regard to the identity of their source(s).

I’ve said in the past that it is highly ironic that these two reporters could spend more time in jail over this matter than have any of the people who ran BALCO or any of the people who manufactured/distributed/used the illegal steroids. I have also said that the prosecution outcomes so far in this case have not proven to be much of a crime deterrent because the lesson I would learn here is to go and start a steroid company and make millions of dollars because when caught all I’ll get is 4 months in a “Club Fed” style prison. I have also wondered when – or if – the US taxpayers would ever get an accounting for the millions of dollars spent by the prosecutors and investigators here; it seems to me that we are getting precious little return on our money in terms of punishing “the BALCO-bad-guys”.

From that last paragraph, you should conclude that I don’t have a warm and positive feeling about the people running the Federal investigation. In fact, I could be convinced that the reason for their insistence on the testimony from these reporters is that they are too inept to uncover the identity of the person(s) who leaked their own grand jury testimony transcripts. I tend to think that identifying the leaker(s) would be relatively easy to do when compared to putting the “BALCO-bad-guys” away for significant periods of time.

Make no mistake; I have absolutely no sympathy for the “BALCO-bad-guys” here. Forget that they made and distributed illegal drugs; they did something else that ought to irk every sports fan in the country. They made it far more difficult to appreciate the achievements of athletes - - and that’s an important foundation piece that all sports fans need in order to become absorbed in sporting endeavors. I call them “BALCO-bad-guys” here because the sports fan in me really does think they are BAD GUYS.

My problem comes from the tone and tenor of all the comments made by other reporters/columnists about the injustice in all this. After invoking the First Amendment and “the people’s right to know” in the first paragraph of any article on this topic, there is often a call for some kind of Federal “shield legislation” because that would protect people like these reporters who were “only doing their job”.

I suspect if you went to any Federal prison and interviewed a bunch of bank robbers and all of them told you that a bank robber currently standing trial should not be punished because he was “only doing his job”, you’d be unlikely to give great credence to those statements. There would be an element of self-interest there, no? Well, there is an equal measure of self-interest in any newspaper column that calls for “shield legislation” if this is to be the case that is used to prop up that argument. There is an adage that bad politics makes bad law; this case isn’t a political one but it too could yield some bad law.

I firmly believe that reporters need robust protection from having to reveal sources when they report to the people about things such as government misconduct, government inefficiency, graft, fraud, criminal actions and things of that ilk. Those were the bases of the stories of Watergate and the Teapot Dome scandal and the muckrakers’ revelations of the past. That is not really the case here.

By refusing to testify before the grand jury about how they obtained the grand jury testimony, these reporters are not bringing criminal behavior or government misconduct to light; they are obfuscating it. Their silence allows a person or persons who violated a law – by revealing the grand jury testimony – to remain outside the reach of the law. [Yes, I do wish that the investigators were competent enough to find the culprit(s) out on their own; but that seems not to be the case.] These reporters are – in a very real sense – aiding and abetting a criminal or two or three.

In fact, if the investigators have even a marginal level of competence, the culprit(s) here have probably committed two crimes. Not only was the transcript leaked, but now the prosecutors say that “everyone who could have leaked it” has testified under oath that he/she was not the one who did it. So it is possible that the silence of these reporters will protect a “leaker” and a perjurer. That’s not the kind of professional who needs to have a “shield law” around them.

There are lots of dimensions to this matter that need to be considered before a final resolution emerges. As I said, the reporters are appealing the order that they must testify and it would not surprise me a bit if at some point the Supreme Court had to make a determination with regard to some part of this matter. But this is not the situation to form the basis for a call to reformers in the Congress – such as Senator Arlen Specter to be very specific – to generate broad and sweeping new protections for reporters. If these guys earn blanket immunity/protection from the law for their actions here, what might reporters ever do that would come under the scrutiny of a court anywhere?

Let me summarize. I don’t think there are any “good guys” in this matter:

The “BALCO-bad-guys” made and distributed illegal drugs, made a fortune doing that and put a sour taste in the mouth of lots of sports fans.

Various people likely perjured themselves in front of the first Federal grand jury investigating this matter.

The investigators/prosecutors have been less than efficient and effective in their expenditure of taxpayers’ funds in all of this.

The “testimony leaker(s)” committed a crime.

The “testimony leaker(s)” probably committed perjury when asked if they were responsible for the leak.

The reporters are not ferreting out the “bad guys” in this situation; they are protecting some of them.

I want to be very clear about this; I don’t wish for these reporters to go to jail and to spend a lot of time there. I would very much like to see the people who made the drugs that BALCO sold and the people who used BALCO to get rich go to jail for a long time. But what I really and truly do not want is for the Congress to over-react [as they always seem to do] and make these reporters and others who may follow in their footsteps into people totally above the law. That would not be right either.

But don’t get me wrong, I love sports…