Time Inc.'s PlameGate Apologist

In August 2004 special prosecutor Patrick Fitzgerald, investigating the outing of CIA operative Valerie Plame, subpoenaed Time Inc., asking for "notes, tape recordings, e-mails, or other documents" relating to reporter Matt Cooper's work on the Time story "A Question of Trust," and the Time.com story "A War on Wilson?" Fitzgerald wanted to know who told Cooper about Plame (it turned out to be Karl Rove). Time Inc.'s editor-in-chief, Norman Pearlstine, initially resisted the subpoena, but in June 2005 he agreed to comply. In Off the Record Pearlstine explains the logic of his conversion and gives excellent insights into how the press construes its role in the republic.

Pearlstine begins with a meeting in which his CEO Dick Parsons said, "If we exhaust our legal remedies, Matt should testify and you must turn over the files." Pearlstine countered, "The decision is mine to make ... and if we lose, we shall pay the fines and Matt will do the time." Time Inc. then retained Floyd Abrams, the First Amendment champion who served The New York Times in the Pentagon Papers case. Abrams later accepted New York Times reporter Judith Miller as a client. Pearlstine says at first he was in "Floyd Abrams's fan club."

But soon Abrams and New York Times publisher Arthur Sulzberger Jr., persuaded Pearlstine he had picked the wrong allies. Interested in "regaining the glory days of the Pentagon Papers," they were "more focused on the court of public opinion than on the courts of law." When Sulzberger produces a button reading "FREE JUDY, FREE MATT, FREE PRESS," it's a turning point in Pearlstine's story.

Pearlstine goes to Theodore Olson, U.S. solicitor general from 2001-2004. "I realized what had been missing.... Olson's work for Presidents Reagan and Bush gave him an intimate understanding of the Supreme Court's more conservative members...." Pearlstine switched from the outsiders to the insiders: "eschewing the buttons that Sulzberger had wanted to distribute, we ... designed a focused public relations campaign.... Ted Olson wrote a persuasive article for The Wall Street Journal's conservative editorial page... I met with Rupert Murdoch and many of his key lieutenants from the Fox Network and the New York Post." Leaving the liberal crusade, Pearlstine went to the conservative consultants.

But this strategy failed. The Supreme Court refused to hear the case, letting stand a lower court's ruling that Time Inc. had to honor the subpoena. Legal remedies exhausted, Time Inc. could defy or comply with the law. Pearlstine chose compliance based on a lawyerly analysis that annoyed even his new wife: "I went to bed with an editor and I woke up with a lawyer," she complained.

Pearlstine's reasoning rested on two distinctions. The first separates merely anonymous from securely confidential sources. Anonymous sources can expect a reporter not to print their names. Confidential sources, on the other hand, enjoy--and must explicitly secure--the reporter's commitment to conceal their identity even at the cost of jail time. Pearlstine says he made this distinction in a memorandum he wrote as managing editor of The Wall Street Journal in 1986, and he applied it again in Cooper's case: Cooper did not pledge confidentiality to Rove, so Rove did not deserve protection in defiance of law.

Journalists generally disagreed: "the distinction I had made between anonymous and confidential sources didn't wash." Joe Klein, Frank Rich, David Halberstam, and others criticized Pearlstine while only a few supported him; Pearlstine's chapter "Dealing with the Fallout" runs eleven pages, while "Welcome Support" covers only three.

Pearlstine comes across as careful and phlegmatic. His is nevertheless a dispiriting story. It is dispiriting that establishment instinct number one was to dig in and invoke privilege; dispiriting that instinct number two was to find an angle through the conservative network; dispiriting that only after those measures failed did it become worthwhile to consider the merits of the situation.

To a non-journalist it is most dispiriting that even then, the question of who Cooper was protecting and why remained a secondary concern. Pearlstine notes, "Neither Rove nor [Scooter] Libby fit the classic profile of a someone deserving confidential-source status--a 'whistle-blower' who was jeopardizing his livelihood, his reputation, even his life, to provide valuable information to the press and expose wrongdoing. Rove and Libby were instead working to undermine a whistle-blower, Joe Wilson, by naming his wife, Valerie Plame, as a CIA operative." But this is "[a]nother troubling point," subsidiary to Cooper's failure to grant confidentiality in the first place.

Yet it's key to the question of reporter-source privilege and to the argument for a federal shield law, which Pearlstine supports. Doctors, lawyers, and clergymen serve their clients without publicity, but a reporter's job requires making information public. A request for confidentiality, inherently a bid to manipulate public discourse without consequence, should incur the strictest scrutiny, and reporters should grant such requests only to whistle-blowers at serious risk. The only real protection in such a case is civil disobedience. As Pearlstine said in an interview with Walter Isaacson (and a participating audience including Bob Woodward, David Ignatius, Steve Rosen, and Carla Hills, among others), "I can imagine a story where... the editor and the reporter would have to quit and leave the publication because they just were not going to turn over the source. This wasn't that case." The real benefit of a federal shield law might be to define such cases quite narrowly, offering reporters an automatic reason to refuse confidentiality otherwise.

Finally, it is dispiriting--though after the past six years perhaps not surprising--to learn that Pearlstine believes People was "the magazine I thought did the best reporting at Time Inc." Pearlstine says "most journalists" live in a world of simple dichotomy, believing "information from anonymous sources is more trustworthy than the canned, on-the-record quotes printed in press releases and uttered at news conferences." However tortuous the road to rethinking this choice, Pearlstine has traveled it, and, maybe now, so can the rest of us.

By Eric Rauchway