18th August 2006
(Republished by permission – Courtesy of XM175 and Baseball Beat with Charley Steiner)
Earlier this week, U.S. District Court Judge Jeffrey White ruled that San Francisco Chronicle reporters and authors of the Game of Shadows, Lance Williams and Mark Fainaru-Wada must divulge who leaked them secret grand jury testimony of Barry Bonds and other athletes who took part in the government’s BALCO probe. Judge White told the San Francisco Chronicle that, “neither the constitutional right of freedom of the press nor federal law shields journalists from testifying to a federal grand jury about confidential sources.” Williams and Fainaru-Wada are appealing the ruling.
Today, Mark Fainaru-Wada joined us to chat about the latest in the case. Lance Williams was on vacation this week and unavailable.
Mark Fainaru-Wada on Baseball Beat with Charley Steiner
Transcript, August 18, 2006, 1:25 p.m. (eastern)
Charley Steiner: We welcome you back to the Beat here on XM 175. I’m Charley Steiner. We’re in San Francisco this weekend. The Dodgers and the Giants in a three game series. Of course, this is ground zero for Balco and Bonds. Regrettably Lance Williams and Mark Fainaru-Wada of the San Francisco Chronicle and of course they wrote the Game of Shadows, the ultimate book in all of this. We welcome Mark to the program. Mark, good morning. How are you?
Mark Fainaru-Wada: Good morning, Charley. How are you doing?
Steiner: Probably a little better than you.
Fainaru-Wada: [Laughing] I’m okay. You know it’s our daily. Just our… As Lance says, it’s the e-ticket ride we just continue to be on. So, we’re
Steiner: Buckle the seat belt.
Steiner: Tell me about the week that was.
Fainaru-Wada: Well, it’s really. The whole thing…In terms of our situation, it’s really been the months that were. We were subpoenaed back in May. And, you know, have been fighting those subpoenas and writing briefs. And, our lawyers did a good job of oral arguments about two weeks ago. Then on Tuesday, we were issued a ruling from the district judge here in San Francisco. Jeffrey White. Who ruled against us. Probably not shocking. We figured that might be the case. Not that likely that you would see a district judge rule in our favor perhaps at this point. One of the things that he wrote in his ruling was that he recognized the importance of the First Amendment, but was hamstrung by the way the law reads and the way the appellate courts have ruled. That’s where we’re headed. As our lawyers have said, we’re headed to the appellate court and we’re hoping we’re going to get a win there.
Steiner: Do you have any sense of a timetable? We all know about how the legal process can sometimes ground to a halt, but then are times when they suddenly can mystically heat it up?
Fainaru-Wada: We’re under the impression that nothing is going to happen pretty quickly. There’ll, there’ll be briefs that are going to be filed on our behalf to the Ninth Circuit Court of Appeals. That’ll take some time and then there will be oral arguments in front of that court and then that court will rule. The lawyers have told us that they wouldn’t expect anything to happen that quickly. We’re talking months, several of them probably.
Steiner: So, then the question becomes when push comes to shove are you guys going to be Judith Miller and Matt Cooper?
Fainaru-Wada: Well, I don’t want to compare us to anybody else. We’re going to be ourselves. What we’re going to do is again hope that we win. We’re going to hope we win in the Ninth Circuit. Then if we don’t win there unfortunately, we’ll move on and see if we can get some relief higher than that. To the point of your question, which is I am sure, “Are we willing to go to jail for the sources.” If the government decides that’s what they want to do with us for doing our jobs and protecting the sources. Then that’s what’s going to happen. It’s just not an option for us to do anything else. So, you know. I sort of to say that’s what we would do. I don’t put ourselves in anyone else’s shoes or wouldn’t ask for anyone else to be in our shoes. This is just what we feel is the most important thing to do for, you know, ourselves and for the business and everything else.
Steiner: How much of your own case, your own defense, is that impacting on your ability to report? Have you had to…I don’t know what the right word is, certainly not compromise, sacrifice time, energy. How has that impacted on your ability to do what you do for a living? That is to be a journalist.
Fainaru-Wada: I think it’s more… It’s funny, I was talking to my boss about this yesterday. I think more than anything, I have found myself distracted. It’s a distracting thing to have this deal sort of hanging over your head. And, continuing to go on and on. I don’t want anyone to cry for us. We have a wonderful situation. We’ve had an incredible story to cover. We love our jobs. And, all of that. But, it’s certainly distracting. So I think it makes it a little difficult to focus on continuing to cover Balco and continuing to just look at this perjury investigation and what’s going on with Bonds and the rest. That’s the most dramatic way that it’s had an impact on us. There are little sort of ancillary issues with the job. Anderson’s lawyers are making arguments that have to do with leaks in his situation, so that limits us a little bit in our ability to cover that part of his story. So, there are little things, but mostly it’s just distracting.
Steiner: The irony is that you wanted to bring this story to life and may go to jail for it. And, Greg Anderson doesn’t want it to come to light and he may go to jail for it.
Fainaru-Wada: Yeah, that’s one of many ironies in this whole situation. You know, we’re watching the Anderson case really closely not because of our own situation at all, but really because it’s a fascinating part of what is going to happen with Bonds. We remain focused, or trying to remain focused on the story and Balco. Right now, it’s squarely about this issue of perjury of Bonds and other athletes possibly. Trevor Graham, the coach. This is where the government is at in the state of the investigation. Anderson’s refusal again yesterday leads you to believe he’s headed to jail sometime in the near future. You know the question remains, how much does the government actually need him to indict or how much are they just continuing the investigation to see how much more they can get.
Steiner: What do you suppose based on that you know, which is considerably more than everybody else?
Fainaru-Wada: Well, you know. I loathe to try and get inside these guys heads, the government meaning. If you are to take at face value the sort of actions that they’ve taken since they did not choose to ask the previous grand jury to indict. It would appear they are, you know, trying to line everything up as perfectly as they can. Given they are in San Francisco, perhaps concerned about making a case in San Francisco. Figuring why not put Anderson through it again. We can make him serve jail time longer and perhaps that’ll convince him to change his mind and if he doesn’t, as he’s indicated he won’t, then so be it, we are continuing to build our case. We’ll continue to talk to more people and ultimately then ask for an indictment. The more cynical view, or dubious view, is that they are sort of delaying because they are not sure if they really want to go for it or not. Not just with Bonds, but with others. I wish I had an easy answer to this, but I think because the case has played out the way it has, you know, in many cases we are just making educated guesses.
Steiner: Mark Fainaru-Wada from the San Francisco Chronicle, who along with Lance Williams, wrote the definitive book on this whole Balco mess the Game of Shadows. What’s in it for Greg Anderson to keep his mouth shut and go to jail?
Fainaru-Wada: I think that’s another good question. And, again, we’re sort of making suppositions and trying to get inside people’s heads and trying to know what’s going on behind the scenes. Again, two sort of courses of thinking. The cynics will tell you they believe Anderson must be getting paid or there must be a payoff at the end or he’s been assured of something or those kinds of things. People that we know who are close to Anderson have said “Look, this is just about…He’s said this all along. He’s not going to name names. He’s not going to compromise Bonds. And, he’s not going to do this not because of Barry necessarily, but because this is the way he thinks. He just feels like it’s the thing to do.” You know, I don’t know the answer to that question. I do know that based on one of the documents we read yesterday that Anderson was offered a chance to make a deal previously before in the Balco part of the case to name names. He declined to do that and the government re-wrote the deal with the names out of it, so that would indicate that he is pretty consistent in his notion of not naming names.
Steiner: In reading the book, and granted it was a couple of months ago, the sense that I got about Anderson based on how you wrote about him is that physically he’s a strong guy but emotionally he seems like, you know, a weak guy that the muscles are building up a fortress around him. The fact that he has been as steadfast as he has been to this point, is that surprising to you?
Fainaru-Wada: No I don’t think so. I don’t know that that characterization of emotionally weak I would necessarily agree with. I think, you know, that manifests itself, I’m guessing, in the way he deals with Bonds and sort of, you know, becomes essentially a sycophant to him…
Steiner: A toady.
Fainaru-Wada: And I think, you know, I guess I, you know, for me I wouldn’t necessarily, I think people can be that way, but also make some emotional decisions for themselves, and in this case this is one emotional decision Anderson might be making because he feels steadfast and strong about it. But you know, a lot of people get around Bonds and or other big-time athletes, and this is what they become. This is who they are because they feel like they are defined by their time around them or that to be able to maintain their closeness to the situation they do whatever they have to do and they basically become, as you say, toady. So I think that there is a, there is a perhaps a complexity to that and maybe a, you know, maybe that seems contradictory. But I guess I would suggest that perhaps you could be that way and yet also decide that there is something you want to stand behind and you’re not going to do, what, whether the reasons are right or not.
Steiner: Isn’t it ironic, and again, as you pointed out, there is so many ironies in all of this, that at this moment in time, what is it the 18th of August. Barry Bonds is off on the side somewhere and Greg Anderson is front and center, and you’re front and center, and Lance Williams is front and center. It’s really bizarre.
Fainaru-Wada: Yeah, well, this is three years of bizarre for us. You know, nobody could have accepted, certainly, you know, when we first started covering this thing that it would turn into anything like it has. This was a raid on a lab nobody had ever heard of basically and, uh, you know, the IRS was leading the raid so people figured maybe it was just a tax evasion case. So the fact that it’s exploded into the deal it has and then gone off on these tangents is just crazy, and, um, you know, I don’t know what to say about it other than you’re right.
Steiner: To the best of your knowledge, is the government still going after Bonds on the tax stuff, and, uh, or is it all, again, supposition baiting again…
Steiner: You know a lot about this than we do.
Steiner: Is it still…go ahead.
Fainaru-Wada: No, again, hard to know. You know, we know that they were asking question about tax evasion previously. They were gathering documents on the tax issue and still looking at it. Um, the witnesses that we know about, uh, though in the more recent, uh, past have been, uh, witnesses who would testify more about the perjury issue. So I don’t know if that means that they are no longer interested in the tax issue or if they have the tax issue dealt with and that we’ll hear about it as it comes out. Uh, again, you know, I mean the most frustrating thing about this case is that so much of it plays out behind-the-scenes and um, you know, even when material is publicized or becomes public even by the government, you know, half the time you still don’t know what they are doing.
Steiner: Let me ask you this, uh, again, because we are going down a path that I’ve not been down before, if and when they throw you and Lance behind bars, is it for the term of the Grand Jury or does it, can it conceivably go beyond that?
Fainaru-Wada: I mean my understanding on this from the lawyers is that its, that it would be the duration of the Grand Jury, but there’s also, you know, there’s, the judge has discretion for how he wants to interpret this and what, how he wants to penalize us. So, you know, there are no guarantees; could be fines. Could be jail time. Um, could be a certain amount of jail time. Could be the duration of the Grand Jury. It’s a, it’s a, you know, that’s the other unfortunate thing and the distracting thing I think about this for both Lance and I is that, um, you know, A, you don’t know where this is headed, and, B, you just don’t know how long this is going to take.
Steiner: Are you scared?
Fainaru-Wada: You know, uh, I mean, ah, I mean I guess I’m more anxious than scared. I mean, you know, no one wants to think about going to jail, but, uh, but I, again, am more distracted than anything. Um, it’s just a, a it’s an unfortunate situation. But I’m trying to, you know, Lance and I are both optimistic people as cynical as we are, and, you know, I think we’re both remaining optimistic that we are going to get a win in this thing at some point along the way. I mean, you know, I just think it’s such an important thing. You know, if reporters are not in a position to be able to rely on confidential sources sometimes, and lord knows we’d love to not. I mean, I, you know, it’d be great if this whole thing had played out in public, the government had filed it’s, the indictments, and made, you know, not hidden the names of the athletes and tried to expose sports cheating in a real significant way, but they didn’t. Um, and unfortunately sometimes you need to rely on confidential sources to be able to expose cheating, or government misconduct, or big business corruption, and, you know, if reporters can’t do that, that’s going to dry up the flow of information one would think, and that’s hardly in the public’s interest.
Steiner: In a philosophical sense, do you understand the government’s position?
Fainaru-Wada: Oh sure. Absolutely. I, you know, Lance and I have both said, you know, neither of us feel like we are above the law. The Grand Jury secrecy issue is not something that we have taken lightly. Ah, you know, we didn’t publish these stories willy-nilly. There were discussions at the paper about it. Eh, but ultimately, like I said, we’ve always felt these stories were of a public value. They were important. Um you know, and, you know, to read the affidavits folks who have stood up for us in our case here, they would suggest that, you know, we’ve made some difference. That there’s a national dialogue going on about steroids that wasn’t happening, at least in part because of the stories we’ve written. We’ve put a name and a face to the steroids issue these people would say, and that wasn’t happening as a result of the investigation. So, you know, I, you know, humbly submit that that there’s some, you know, public reason for doing the stories and that there needs to be a balancing that needs to take place in the government’s mind as the Attorney General decides he’s going to start going after reporters.
Steiner: Mark, um, there is nobody in our business who is not rooting for you guys passionately on so many levels, and, um, good luck, Godspeed, and come on back anytime you feel you need a forum. We’d love to have you here.
Fainaru-Wada: Charley, we really appreciate your support. Thanks very much.
Steiner: Thanks Mark.