A federal judge told two San Francisco Chronicle reporters they must comply with a subpoena and tell a grand jury who leaked them secret testimony of Barry Bonds and other elite athletes ensnared in the government's steroid probe.
The decision by U.S. District Judge Jeffrey White means reporters Lance Williams and Mark Fainaru-Wada must appear before a grand jury investigating the leak unless a higher court blocks the ruling. The pair have said they would not testify and would go to jail rather than reveal their source or sources.
"Lance and I are firmly standing behind our sources," Fainaru-Wada said shortly after the decision.
The two reporters published a series of articles and a book based partly on transcripts of testimony by Bonds, Jason Giambi and others who testified in the grand jury investigation of the Bay Area Laboratory Co-Operative. Known as BALCO, the Burlingame-based nutritional supplement company was exposed as a steroid ring.
The criminal conduct being investigated in the Bonds leak case includes possible perjury and obstruction of justice by government officials, defendants in the BALCO probe and their attorneys. All of them had access to the documents, but have sworn they weren't the source of the leak.
The government told White that its investigation has turned up empty, and that Williams and Fainaru-Wada are the last hope of finding the culprit or culprits.
In his ruling, White said his hands were tied by a 1972 Supreme Court precedent that no one, including journalists, was above the law and may refuse to testify before a federal grand jury.
White added that Congress has not adopted a shield law to protect journalists from testifying before grand juries. Most states have shielded reporters from testifying on behalf of the government in state criminal probes.
"The court finds itself bound by the law governing this case to subordinate (the reporters') interests to the interests of the grand jury," White ruled.
The Hearst Corp., owner of the Chronicle, argued that the reporters should be immune to testifying because of a combination of factors, including the First Amendment.
Hearst said it would appeal the ruling.
"We believe we will ultimately prevail and that is clearly what is in the public's best interest," said Eve Burton, the company's general counsel.
Hearst argued that the leak doesn't involve national security and that a lot of good has come from the writers' reporting.
As a result, it said, Major League Baseball toughened its steroids-testing policy, as did track and field. Sentences for steroid distribution were strengthened, and the public awareness of the dangers of steroids was raised.
The government discounted that the pair's reporting on the topic was cause for such results.
Williams and Fainaru-Wada reported, among other things, that Bonds denied knowingly using steroids when he told the BALCO grand jury that his trainer had given him what he thought was flaxseed oil and arthritic balm. That trainer, Greg Anderson, was convicted of steroid distribution charges in the BALCO probe.
Another grand jury is investigating whether Bonds committed perjury during that 2003 testimony.
Williams and Fainaru-Wada are the latest reporters ordered to testify before a federal grand jury investigating government leaks. New York Times reporter Judith Miller was jailed for 85 days last year for refusing to testify in an investigation into the leak of CIA agent Valerie Plame's name.
Federal prosecutors in Los Angeles are handling the leak probe and declined to say when they would order the pair before the grand jury.
The case is United States v. Fainaru-Wada, 06-90225.