Off The Record 

So we finally know who leaked Barry Bonds's grand jury testimony to the San Francisco Chronicle. Yesterday it was revealed to be Troy Ellerman, the defense attorney for BALCO chief Victor Conte. After the Chronicle articles hit the streets with the testimony of Bonds and other athletes, Ellerman complained to the presiding judge that his client couldn't get a fair trial because of the press reports.

This, my little friendlikins, is the very definition of what my people call chutzpah.

There's been much debate among Giants fans whether the Chron reporters deserved punishment for publishing secret grand jury testimony. One argument: the grand jury system requires confidentiality; if witnesses think their testimony will be leaked, they won't show up.

I don't have the legal expertise to corroborate that (can't they be compelled to testify by subpoena, no matter how scared they are of leaks?), but this argument -- the leaks poison the atmosphere of trust needed for grand juries to function -- seems more germane to the ability of the press to do its job.

The BALCO case wasn't the only leak involving reporters and their sources. The Lewis Libby trial, tortured as it is to follow, is another, and there's the lower-profile but no less interesting case of the blogger who's been in jail for six months for refusing to hand over to the feds a videotape of an anarchist street rally.

Full disclosure: I make my living as a news gatherer, so I'm a wee bit biased, but here's how I see it. The general trend in all these cases is to make news gatherers reveal their sources or go to jail. Most states have "shield laws" in place that prevent reporters from having to rat out their sources, but there is no federal shield law. If it's a federal case, journalists can be compelled to testify. (If the Dems have their way, there will be a federal shield law, but there's many a slip between the cup of Pelosian happy-talk and the lip of a Rose Garden signing ceremony.)

Once journos start having to reveal their sources, the sources will be far less willing to reveal themselves to journalists. Many sources don't trust us, anyway, and require a lot of coaxing to come forth with anonymous information. Once there's no guarantee that even a reporter's solemn oath to protect a source's identity will keep the subpoenas at bay, a lot of whistleblowers will melt back into the shadows.

You might say that in the BALCO case, that's all well and good. Mr. Sleazebag Lawyer wouldn't have leaked the grand jury testimony, and the wolves of speculation would not be howling so ferociously around Barry Bonds's campsite. Barry (and Gary, and Jason) wouldn't be getting such a raw deal. And their civil rights wouldn't be so violated.

But is the solution a crackdown on all reporters who publish information they shouldn't have obtained? If so, we never would have had the release of the Pentagon Papers 36 years ago. Or, if you like, much of the reporting in the past couple years that has exposed the questionable practices of our government in the name of national security.

I'm the first to bemoan many of the lurid intrusions of the press into private lives. Partially it's a matter of taste: I couldn't care less how many men claim to have inseminated Anna Nicole Smith. Does that information make us better citizens? Unfortunately, a great number of my fellow citizens prefer to follow that story 24-7 on cable TV than, say, North Korean nuclear negotiations. I'm not going to bang my head against that particular wall of human nature.

Does the public have a right to know that Barry Bonds stood before a grand jury and kinda sorta admitted to using illegal performance-boosting drugs despite his many public denials? (And that Jason Giambi flat-out admitted it?) Beyond the right to know, does knowing it make us a better-informed public?

I don't have a definitive answer, except to say this: Journalistic excess is bad. What's worse is a legal climate that severely restricts the ability of the press to publish sensitive information that should be made public. The more you see journalists in jail or on the witness stand, the more restrictive that climate becomes.


P.M. UPDATE: According to this wire story, Barry is officially on board and will report to camp Monday. Barry's on the 40-man roster to the right now that he's signed sealed and delivered (link props to Elbo and his excellent riposte to a Slate essay that bemoans post-swing jazz).


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