49ers report leak: Lawyers for indicted Santa Clara Councilmember Anthony Becker are building a case that others leaked the confidential report

With Santa Clara City Councilmember Anthony Becker set to go to trial next week on criminal charges of leaking a confidential civil grand jury report and lying about it, his defense team is pointing the finger squarely at one of his biggest political adversaries as the real culprit: Mayor Lisa Gillmor.

Becker’s legal strategy is laid bare in hundreds of pages of court documents reviewed by this news organization, with his attorneys arguing that he’s being selectively prosecuted.

Becker, who recently filed for reelection, was indicted last year on perjury charges involving the leak of a Santa Clara County civil grand jury report. The scathing report, titled “Unsportsmanlike Conduct,” criticized the San Francisco 49ers’ influence on the city and the frequent closed-door meetings between the team’s lobbyists and Becker and several other councilmembers.

The report was set to be publicly released on Oct. 10, 2022 — just weeks before a contentious Election Day in Santa Clara, with Becker challenging Gillmor for mayor. But a draft of the report was published in several media outlets, including this one, on Oct. 7.

Former 49ers spokesperson Rahul Chandhok told the criminal grand jury that the councilmember sent him a copy of the report on Oct. 6 via the encrypted messaging app Signal, according to a transcript of the hearing. Councilmember Suds Jain also told the grand jury that Becker admitted to leaking the report to the Silicon Valley Voice, a local news outlet.

But Becker’s legal team contends that he wasn’t the only one who did.

“We have reason to believe, based on the evidence disclosed by the government, that someone other than Mr. Becker leaked the grand jury report to the San Francisco Chronicle among other possible sources,” public defender Christopher Montoya and Grant Fondo and Hayes Hyde of Goodwin Law Firm said in a statement. “To our knowledge, the government did not pursue that particular leak. We believe determining who leaked the report is important to this case.”

Becker’s lawyers recently asked a court to compel the District Attorney’s Office to hand over any information “that points to or may lead to evidence that points to someone else having leaked” the report. The request includes search warrants that the DA’s Office served as part of its investigation, including any served to Gillmor.

A judge ultimately ordered the release of some — but not all — of the records related to Gillmor’s subpoenas and unsealed the search warrants against her.

“Mayor Gillmor had much to gain from the early publicization of the report,” Becker’s lawyers argued. “Mayor Gillmor was competing against Mr. Becker in the upcoming mayoral election, and the report was highly critical of Mr. Becker.”

In making their argument, Becker’s lawyers revealed that a DA’s Office investigator obtained Gillmor’s internet history and found she had searched “contempt of court,” “defined contempt of court” and “can I go to jail for contempt of court in California?” two weeks after she testified in front of the civil grand jury investigating the source of the leak. The DA’s investigator also revealed that Gillmor was on a “text message basis” with Chronicle reporter Lance Williams, but “there is an aberrant absence of text messages between her and Mr. Williams between October 5, 2022 and November 8, 2022.”

In an interview with the Mercury News, Gillmor denied leaking the report and said that she searched online for information about contempt of court because other councilmembers were talking about their testimonies publicly.

“When we leave the grand jury, you take an oath that you will not talk about what the grand jury discussed with you at their sessions,” Gillmor said. “If not, you are liable for contempt of court. And so I remember looking that up because I had councilmembers that were openly discussing their meetings with the grand jury.”

Becker’s lawyers have issued more than a dozen subpoenas this summer for email, text and phone records, court documents show. Also subpoenaed were Santa Clara Police Officers’ Association President Jeremy Schmidt, political consultant Jude Barry and Hearst Communications, which owns the San Francisco Chronicle and two of its reporters Williams and Ron Kroichick.

David Snyder, the executive director for the First Amendment Coalition, called the subpoena of the Chronicle “insanely broad.” Becker’s legal team had 96 requests in its subpoena of the Chronicle and its reporters that included communications between reporters and Gillmor, her allies and civil grand jury members; tips; source material; notes and other unpublished materials related to both the civil grand jury report and other Santa Clara articles the Chronicle published in 2022.

Snyder said that California journalists are protected by the state’s shield law, which defends them from giving up information about their sources or other unpublished materials if they are subpoenaed or presented with a search warrant. However, he said there are exceptions, such as when withholding information would infringe on a defendant’s constitutional right to a fair trial — an argument that Becker’s team unsuccessfully made.

Becker’s lawyers also subpoenaed Gillmor, Councilmember Kathy Watanabe and her husband, Karl Watanabe, for any communications they had with Chronicle reporters — a move that Hearst Communications’ lawyers, Thomas Burke and Sarah Burns of Davis, Wright and Tremaine LLP, rebuked sharply in a July motion asking a judge to quash the subpoenas.

“Subpoenaing third parties for their communications with journalists would significantly and unnecessarily chill sources from speaking with its reporters in the future, out of fear that any confidences would be disclosed as well,” Burke and Burns wrote. “This would stifle Constitutionally protected speech and reporting activities, the precise harm the Shield Law sought to prevent.”

Snyder said the arguments the Chronicle’s lawyers made regarding unpublished materials was a strong one.

A judge agreed, ruling that shield laws prevented Becker’s lawyers from obtaining any communications from the Chronicle or in a roundabout way through others.

As Becker’s team prepared their case ahead of the start of his Sept. 9 trial — a date that has been pushed back several times now — Deputy District Attorney Jason Malinsky has fought more than a dozen subpoenas, accusing the councilmember of using “the court to investigate his political adversaries and media organizations he perceives as unfriendly to him.”

“Defendant’s problem is that proof of such conduct does not amount to a defense to the charged crimes,” Malinsky wrote in a July 8 motion “Whether somebody else did the same thing Defendant did does not absolve Defendant of the crimes for which he is charged.”

But Montoya, Fondo and Hyde disputed Malinsky’s accusation that the subpoenas were being used to investigate his political opponents.

“The defense has a legal obligation to pursue all relevant evidence through investigation,” they said in a statement. “That is the sole purpose of the defense’s efforts; it has nothing to do with any political campaigns.”