I’ve just returned from my second week of attending the Scooter Libby trial in Washington, D.C., where it was sometimes difficult to determine whether it was the media or Scooter Libby on trial. The focus of the trial has been on who in the Bush Administration leaked the employment status of C.I.A. operative Valerie Plame to the media. Many big name reporters, including NBC’s Tim Russert, the New York Times’ Judith Miller and Time Magazine’s Matthew Cooper, all fought the subpoenas on First Amendment grounds, only to lose in court and end up on the witness stand, describing from whom they learned about Valerie Plame. It’s great to be home, back at my desktop computer with a big screen, surfing around for local news. The first article that caught my eye was about the BALCO grand jury investigation in California into steroid use by athletes. As background, before I get to the Colorado connection, two reporters for the San Francisco Chronicle obtained grand jury transcripts, including that of baseball’s Barry Bonds, and the paper published them. The Justice Department subpoenaed the reporters, who fought the subpoenas and lost. The reporters still refused to give up their source. The case is being appealed. A few weeks ago, the source came forward. He is 44 year old Troy Ellerman, an attorney from Woodland Park, CO who represented two defendants in the case. He pleaded guilty in federal court in California today to obstruction of justice and another charge. The plea agreement calls for two years in prison. As an officer of the Court, Ellerman should have known better. But, this is pure hutzpah.
Shortly after the first leak in June 2004, Judge Susan Illston ordered an investigation. Ellerman and all lawyers in the case filed statements under penalty of perjury swearing that they weren’t the source. Ellerman even made a motion in October 2004 to dismiss the case against [his client] Valente because of “repeated government leaks of confidential information to the media.” Prosecutors said Ellerman leaked the transcripts in a misguided attempt to derail his client’s prosecution. “Such gamesmanship undermines the integrity of the legal system and demands accountability,” said Deputy Attorney General Paul McNulty.
Also, Ellerman didn’t come forward because of a guilty conscience over the reporters going to jail for refusing to name their source. He got caught on tape:
Larry McCormack, former executive director of the Pro Rodeo Hall of Fame and a private investigator who briefly worked for BALCO founder Victor Conte, said he tipped off FBI agents. McCormack said he shared a Sacramento office with Ellerman and that Fainaru-Wada visited there several times in 2004. McCormack said Ellerman told him about the leaks. In February 2005, McCormack moved to Colorado Springs, Colo. to work for Ellerman, who then served as commissioner of the Professional Rodeo Cowboys Association. The association’s board of directors fired McCormack in August….
McCormack went to the FBI and agreed to wear a wire:
Shortly after McCormack was fired, he said he wore an FBI wire and had a “heated conversation” with Ellerman in which the lawyer made incriminating statements.
A tawdry affair all the way around. I never approved of the San Francisco Chronicle printing the sealed grand jury transcripts. But for a lawyer to be the leaker, stand on the sidelines while the reporters he leaked to get held in contempt for shielding him and then complain of prejudice to the court while swearing under oath he had nothing to do with the leak, is over the top.