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Off the Record: The Press, the Government, and the War over Anonymous Sources

June 19, 2007

Off the Record by Norman Pearlstine

Introduction

JOANNE MYERS: Good morning. I'm Joanne Myers, Director of Public Affairs Programs. On behalf of the Carnegie Council, I would like to thank you all for joining us this morning.

Today we are extremely pleased to have with us Normal Pearlstine, who will be discussing his book Off the Record: The Press, the Government, and the War Over Anonymous Sources.

Journalism can be a challenging profession. One of its main functions is to open societies by confronting different points of view and providing vital information to the public so that people can make informed decisions about the government, thereby giving them the tools to fully participate in a democracy.

In times of national emergencies or in wartime, the tension placed on reporters to obtain information has often raised issues that impact not only on the press itself, but also on the country as a whole. The meaning of the terms "on the record," "off the record," "confidential," and "anonymous sources" can present hair-splitting legalistic distinctions between just what is printable and just who is accountable.

Balancing these rules of engagement between reporters and their obligations to their sources, between media organizations and their obligation to adhere to the law and provide information to their readers is not an easy task. Yet protecting anonymous sources is vitally important, for without them, big stories, such as Watergate, would not have happened.

But as our guest this morning explains, the media's hunger for a new Watergate has made reporters more vulnerable to officials who hide behind confidentiality to get their messages out, even if it means leaking state secrets and breaking the law, as Mr. Pearlstine knows only too well.

As editor-in-chief of Time during the period of the Valerie Plame affair, he found himself embroiled in one of the most well-known firestorms in recent history. The investigation, led by Special Counsel Patrick Fitzgerald, focused on whether senior Bush officials broke the law by telling journalists about Valerie Plame's classified employment. For almost two years, Time and its reporter, Matthew Cooper, fought against being compelled to disclose a confidential source in response to a grand jury subpoena. In the end, Mr. Pearlstine, using his knowledge as a lawyer, his training as a journalist, and mature judgment as a former managing editor of The Wall Street Journal and editor-in-chief of Time, was forced to make one of the most difficult decisions in his career, when he, after exhausting all legal options, turned over Mr. Cooper's notes to Special Prosecutor Patrick Fitzgerald.

In Off the Record, Mr. Pearlstine explains how he reached this difficult decision. He talks about how this incident unfolded as the administration was fighting two wars—the war in Iraq and the war against the press. As the Bush administration has interfered with the media's ability to perform its duty to freely investigate, to freely criticize, and to freely comment upon the workings of all branches of government, this was not the open-and-shut case it seemed to be.

Yet in the end, whatever the consequences of the war in Iraq are, the institution that may be remembered as the one that was most compromised in fulfilling its duties to inform the public and serve as a vital source of information may be the press. The question that remains is whether something can be done to restore the public's faith in the media. Our speaker just may have that answer.

Please join me in giving a very warm welcome to Norman Pearlstine.

Remarks

NORMAN PEARLSTINE: Thank you very much, Joanne. I would love a copy of that introduction, because it's the best five-minute opening for a speech I have heard or thought about. It certainly saves me some time in terms of not having to recount all of the gory details of the last couple of years.

It's a pleasure to see all of you this morning. I am grateful to you for coming.

In October of 2004, after we, Time Inc., and one of our journalists, Matt Cooper, had been held in contempt, I had a meeting with Dick Parsons, the CEO of Time Warner, some other executives from the parent, as well as from Time Inc., and our lawyers and PR people—about a dozen of us in the room. I told Dick that it was my expectation that the Court of Appeals would affirm the contempt citations that Judge Hogan had imposed on Matt Cooper and on Time Inc., that the Supreme Court would refuse to hear our case, and that at that point Matt Cooper would go to jail and we would pay whatever fines would be levied on us. That was consistent with my understanding of a 200-year tradition that government frequently tries to get the press to reveal things that the press doesn't want to reveal, and the consequence of that is that, in a rather noble tradition, reporters go to jail and publishers pay fines.

Dick disagreed with that. Dick started as a First Amendment lawyer at Patterson Belknap, and he had some fairly strong ideas of his own. But after about an hour of argument, in which I explained to him that as the editor-in-chief of Time Inc., I had an agreement with him and with the board of Time Warner that said this was my call, he relented.

I didn't speak to him again for another nine months. Then, on June 29, 2005, I called him, about 7:00 at night, and I told him I would be turning over our notes to Pat Fitzgerald the next day.

I heard him laugh on the phone and say, "Gee, I was just getting used to your position."

This book is very much about what happened during that period—and, frankly, how I came to realize what I didn't know about what I thought I knew. I had been operating under principles for more than three decades that seemed absolutely clear to me. My reaction was a knee-jerk one, but nonetheless was consistent with that of the profession. But the more I dug into this case, the more I felt that not only did we have no choice but to turn over our notes, but that it was, in fact, the right thing to do, given the law as it now exists.

To set the stage for you, I think it's worth putting yourself in the shoes of Matt Cooper, a very solid, very conscientious reporter, who had been in Washington for 20 years. He is not an investigative reporter. He's a political reporter. He had just gone on the White House beat for Time magazine. Joe Wilson had written an op-ed piece in The New York Times, had given an interview to The Washington Post, had gone on Meet the Press, and said, "Look, one of the three reasons Bush said we were attacking Iraq was because the Iraqis were trying to restart their nuclear weapons program by buying yellow cake from Africa. I went to Africa on behalf of the CIA, I looked around in Niger for a week, and there's nothing to this report. It's bogus."

That led to a fair number of leaks coming out of different places in the administration suggesting that Wilson's wife, Valerie Plame, was working in the weapons of mass destruction section of the CIA and that she had indeed been behind sending him to Niger.

It's not exactly clear to me that a week in Niger is a boondoggle that a lot of people would sign up for thinking this is a great deal. But that notwithstanding, certainly the spin that was coming out of the White House was exactly that.

Matt put out a lot of calls. He managed to get Karl Rove on the phone for about 90 seconds. They had a very quick exchange, in which Karl Rove set the ground rules as deep background. Matt put down the phone, fired off an email to his bureau chief and deputy bureau chief saying, "Spoke to Rove on double super-secret background." A lot of people thought that meant confidential. "Double super-secret background," in fact, was a play on Animal House. Double secret probation, you may recall, was what the fraternity was put on.

In any case, there was then an exchange of emails with New York, where he identified Rove a second time.

He wrote a story. First, he wrote a memo explaining, if you will, that the administration was trying to undermine Joe Wilson by outing Valerie Plame. Interestingly, the editors at Time, who were preparing a story questioning the reasons for the attack on Iraq—a very tough story—didn't think that the information was important enough to put in the magazine.

A few days later—in fact, after Bob Novak had written his piece—Matt did a piece that ran on our website that questioned whether the administration was trying to undermine Wilson by outing Plame.

That created a bit of an uproar in the Congress, some demands from people such as Hillary Clinton and Chuck Schumer, our senators from New York, for an investigation—somewhat surprisingly, also an editorial from The New York Times calling for an investigation of a leak to the press.

But I think for many of us it just seemed like rather typical Beltway politics—tawdry, clearly not in the interest of the country to out a seasoned CIA officer, but not clearly a violation of any law, something I will get to in a little bit. Nonetheless, when Pat Fitzgerald took over as special prosecutor at the beginning of 2004, it was pretty clear that he was serious about the investigation.

I did not really get involved in this case, however, until the spring of 2004, when not only Matt Cooper was subpoenaed, but Time Inc. was as well. In 2003, frankly, the copy that went on the website was not given the kind of attention that we give to copy in the magazine. I think that is changing very quickly, as newsrooms around the country have to realize that the websites are equally important to their print editions, and you have to pay as much attention to their content.

But as I began to look into this after we had our subpoena, our initial reaction was that, of course, when you get a subpoena like this from a government official, you reject it; you resist it. You want to keep your unnamed sources unnamed. I believe strongly that much of the best journalism cannot be done without anonymous or confidential sources. So we decided to resist it.

We had an interesting situation with Scooter Libby. I talked to Matt a bit about Libby. He said, "I got Libby on the phone after I spoke to Rove. All I said to him was, 'I hear rumors that Joe Wilson's wife works at the agency in weapons of mass destruction and may have been involved in sending him to Niger,' and all Libby said was, 'Yes, I've heard that, too.'"

Those of us who were listening said, "Well, gee, that sounds exculpatory. Perhaps you ought to check with Libby's lawyer, Joseph Tate, and see whether he would actually like you to testify on this." Our counsel at that time, Floyd Abrams, called Tate, who indeed said, "Yes, please testify about what Mr. Libby didn't say, that he didn't name Valerie Plame, that he wasn't the one who was leaking information," and so forth. So we did end up with Matt agreeing to testify about Libby.

We thought that would put the case behind us, but Fitzgerald saw something in the testimony that prompted him to want to come back for a second bite and say, "It looks like you have another source we would like to hear about." That suggested a continual fishing expedition that we decided we wanted to continue to resist.

As I feared, the Court of Appeals turned down our decision and we did prepare a petition for the Supreme Court. I wasn't optimistic about it. The Supreme Court takes only about 1 percent of the petitions it gets to hear cases in any given year. This was a pretty tough one, because the D.C. Court of Appeals had voted 3-0 against us, and there was no competing circuit court opinion to go against it. They did so, based on a 1972 decision in a case that I had known a bit about, but frankly had never spent much time with. When I thought of the 1970s, the really important cases to me were the Pentagon Papers and Watergate.

I knew there was something called Branzburg v. Hayes that was all about confidentiality and privilege. But, frankly, in most of my years as an editor, the places where I got involved with sourcing issues were really in libel cases. I don't think I had ever dealt with a question of reporter privilege before this.

But I went back and read Branzburg. It's a curious decision. It was a 5-4 decision, in which the majority holds unequivocally that when it comes to a grand jury, reporters have no special position in society and basically have to give the same kind of testimony and evidence to a grand jury that every other citizen does, and that the grand jury system cannot work unless, in the words of the Court, every man is treated identically in terms of the requirement of their testimony.

It was a 5-4 decision. One of the concurring decisions was from Justice Powell. It's a three-paragraph concurring opinion, which basically says, "I vote with the majority, but I think that we need a balancing test to determine when a journalist must testify," which, in fact, is what the minority was arguing. That created a loophole that, for about 30 years, had given a number of very talented lawyers, like Floyd Abrams and Jim Goodale, the former general counsel of The New York Times, the ability to lead a number of lawyers in trying to carve out exceptions for this kind of balancing test.

The way the courts work, it seems that certain justices at different times become more important in terms of their opinions. One of the most important judges of the last few years has been Richard Posner in the Court of Appeals in Chicago. He took a look at Branzburg, the 1972 case, and about three years ago, he came out with a decision in another case, called McKevitt v. Pallasch, in which he said, "You know, I've gone back and read this. The Powell concurrence is really a concurrence. He voted with the majority, and the majority is very clear about this. We need to really tighten this up." In that particular case, he ruled absolutely that the reporter's testimony was essential before a grand jury and that there was no First Amendment protection against it.

Judge Hogan in the District Court in D.C., who was hearing our case, basically mimicked the Posner case, as did the Court of Appeals in their opinion.

What got me going was, I started looking into all this stuff as we were writing our petition for the Supreme Court, because I thought the odds were that it would be rejected. Then I started thinking, okay, what do I do now? I found, for example, that in looking at prior cases, going back to the Pentagon Papers, which had always seemed to me the classic example of the news industry standing up to government, protecting its source, Dan Ellsberg, and being able to publish, that I might learn something. What I learned was, first of all, in this case, which was really about prior restraint, Dan Ellsberg was not a confidential source. In fact, he assumed that the FBI knew he was the source of the information. He assumed he would be arrested, which he was.

Secondly, The New York Times declared on its front page, in a quote from Arthur Sulzberger ("Punch" Sulzberger), that if the Supreme Court ruled against the Times, the Times would cease publication of the Pentagon Papers. That raised a question in my mind: What is the responsibility of a company, especially a media company, if the Supreme Court basically votes against you, turns down your petition, or rules against you? I found that rather fascinating.

I went to the Watergate case, because I had heard quite a bit about the subpoena that had been served on Carl Bernstein and the so-called "gray-haired widow" defense that Ben Bradlee and The Washington Post had developed, which said, "We'll give Bernstein's notes to Katharine Graham, because there is no way they are going to send this gray-haired widow to jail, and she'll hold the notes."

That's all true. But the subpoena that Bernstein received was not from the special counsel. It was not sanctioned by Judge Sirica. It was in a civil suit involving the Committee to Re-elect the President—CREEP—and the Democratic National Committee. It was one of a dozen such subpoenas that went to a lot of news organizations, and it was quashed by the district judge. So it was hardly a precedent for what I was looking for.

Looking at prior cases—and I looked at a lot of them—I really found very little to support the idea that if the Court turned us down, there was a precedent that really worked for us.

Beyond that, there were questions that came to my mind that I started struggling with. One was, as I started talking to journalists and to editors, and I would ask the question, "Tell me the difference between 'on the record,' 'not for attribution,' 'background,' 'deep background,' 'anonymous,' 'confidential,'" there was no consistency at all. If you looked across the country at various editorial guidelines, you would find different definitions for these terms, and in any case, very few reporters ever read the guidelines anyway, so it never made much sense to them.

The second thing that I came to understand was that, particularly in Washington, there is a tendency on the part of the press to be very quick to grant anonymity to any source. In fact, in the Libby trial, Tim Russert testified, as did Glenn Kessler from The Washington Post, that when either of them picks up the phone and talks to a government official, their presumption is that they are talking on background and that, indeed, confidentiality might be granted.

I found that very troubling. I understand it. As Jack Shafer has written on Slate, the supply/demand situation in Washington is such that you have 8,500 reporters chasing a relatively small number of sources, who can control the ground rules of the debate. But, in fact, the media's job is really to inform the public, and wherever possible, to get people on the record. You certainly shouldn't start every conversation by assuming that it's either on background or it's confidential.

In this particular case, Rove did stipulate deep background. But what deep background means—and this is true in Time Inc.'s guidelines and those of most publications—is that you can use the information for guidance, you cannot attribute it to the individual or to the individual's institution, but it is different from a commitment of confidentiality. When you are on deep background, what you do is, you basically get enough information to try to find a second source whom you can then corroborate the information with. In the alternative, if you feel strongly enough about it and you think the material is solid enough, you can say it on your own.

Matt did a couple of things that were inconsistent with that. One was that, as I say, he put Rove's name into two different emails that more than a couple of dozen people had access to.

Secondly, in his story he talked about "administration officials." That, if you will, would be all right if it were background or not for attribution, but not all right under the ground rules for deep background.

Beyond that, I came to understand—and I have long believed this. I actually had put out a memo at The Wall Street Journal in 1986 that there is a difference between anonymous sources and confidential sources. Anonymous sources are sources whom you won't identify in your publication or your broadcast. Confidential sources are sources with whom you have, I think, a legal binding agreement not to disclose the information.

I think we need to litigate both confidential and non-confidential information. If you are unwilling to litigate a granting of anonymity, then, in effect, anybody who challenges you after publication—you are giving up a name; you are not giving them anonymity. But I think there has to be a recognition that if you lose, the consequences are very different if you have granted confidentiality.

The Supreme Court has actually ruled that a confidential source relationship is an enforceable contract, assuming that that agreement was legal.

In the case of Karl Rove, there were a number of reasons that I thought he wasn't confidential. One was, he didn't ask for confidentiality. In fact, when I ran into him in the fall of 2005, he said to me, "Gee, I don't understand why Cooper didn't call up and ask for a waiver or why he didn't identify me. I never asked for confidentiality." He is a complicated man, and it never occurred to him, of course, to call up and say, "Oh, by the way, use my name." But I don't think, really, that is required of a source.

Secondly, when you think about why and when you want to grant confidentiality, my own feeling is that it ought to be for stories where the information is clearly in the public interest and where the sources' lives, livelihoods, reputations are at stake. A classic example of that, to me, would be the series of articles that Dana Priest wrote in The Washington Post about the CIA detention centers in Eastern Europe. That was the kind of story that could not have been written without confidential sources, and I think it clearly fits that standard.

But I felt that Karl Rove was clearly not a whistleblower in the classic sense. As Fitzgerald made clear in his arguments, he was, in fact, trying to undermine a whistleblower. His reputation and livelihood and life were certainly not at stake. In fact, one of the reasons that Fitzgerald brought an obstruction-of-justice argument against Libby, and one of the reasons he almost indicted Rove, was a feeling that, in fact, they were front men for Cheney and Bush in terms of really pushing this agenda of trying to undermine Joe Wilson, and that he was never able to get to that information.

So I didn't think that Rove met any test of confidentiality.

I also found myself struggling with the question of whether and when an individual or a corporation can decide to defy a court order. I think there again you have to make some legal distinctions. Civil contempt is meant to coerce rather than to punish. Judy Miller didn't go to jail for breaking a law; she went to jail because a judge said, "If I send you to jail, you may get tired of jail and decide to testify." Of course, her attorney, Bob Bennett, said, "That will never happen. It would be a mistake to send her to jail," and 85 days later, she decided it was appropriate to testify and get out.

Secondly, criminal contempt is, frankly, a bit more serious. It's usually a felony. It is a punishment for committing a crime, and it raises very different questions for both individuals and corporations.

I do believe strongly that individuals have a right to civil disobedience and that that right has been exercised frequently over the last couple of centuries by journalists. If Matt Cooper and I were the only two people who knew the identity of his source and we had concluded that that source was indeed confidential, then I think both of us should have been prepared to go to jail, if the case merited it.

It gets a bit more complicated when you have a corporation, although even there, too, I can make the argument in some cases where civil contempt is an issue. Part of the problem that I had— and it was very different from Judy Miller's case at The New York Times—was that Judy was being held in contempt as an individual, but The New York Times was not held in contempt. We at Time Inc. were held, as well as Matt Cooper, because we had possession of the emails. I felt that I had an institutional responsibility to all the employees of Time Inc., because several dozen of them had access to those emails. I thought that letting Fitzgerald sort of serve subpoenas on our IT department and so forth put me in a very different position, if you will, from that of the Times.

The consequence of all of this was that I made a decision that, when the Supreme Court turned down our petition, it seemed appropriate to me to turn over the notes. In doing so, it did provoke every bit the angry response that I thought it would from much of the media. I have said it was the most difficult decision that I had to make in 35 years in journalism. In doing so, I think I have to acknowledge that people, including many of my role models, would disagree with me on this. I think that is to be expected.

I did come away, however, feeling a couple other things. One, we do need a federal shield law that protects us. Branzburg is not a good decision. I wish the Court had taken our case and overturned it. But the reality is, not a single justice voted even to hear the case. Had they taken it, there is a real risk that they might have come down with a decision that was even more forceful than Branzburg in the way that it wants to limit the press' ability to treat confidential sources.

So I think we need a federal shield law. At the time Branzburg was decided, in 1972, one of the points that the majority made was that there weren't very many states that gave this kind of protection to journalists. Since then, under the rules of evidence for federal cases, we have come up with privileges for lawyers, for clergy, for therapists, and I think it's time to have a privilege for the press as well.

There are more than 30 states now that have passed shield laws. Every state except Wyoming offers some protection to journalists in terms of their ability to protect their sources. Texas comes pretty close to making it impossible, but there are a few exceptions even in Texas.

So I think a federal shield law would go a long way toward at least setting ground rules.

The second thing that I think is really necessary is for the press to take a look at itself and to ask itself, how straight are we with our readers? How straight are we with our sources? Do we actually sit down with sources and say, "Okay, you've asked me if I'm going to protect you. Let's talk about what that means." Am I supposed to protect you if you break a law?

I will give you an example of that. In San Francisco, we have had a case for the last couple of years involving a company called BALCO that basically was providing steroids to athletes. The San Francisco Chronicle did extraordinary coverage of that event, coverage that I thought was in the public interest, coverage that did rely on confidential sources, that reported about what was going on within a grand jury. It led to the calling of a second grand jury that was investigating how the leaks went to the reporters.

I felt this was a real stretch of Department of Justice guidelines, another example of prosecutorial excess from Attorney General Gonzales. The case had a similar result to ours at the trial level. While going to the Ninth Circuit for appeal, the Department of Justice dropped the case after a defense lawyer pled guilty to giving the information to one of the Chronicle reporters.

What got interesting there was that the lawyer had a reporter come to his home, look at the grand jury testimony, and the reporter wrote a story. So far, I am pretty comfortable with that. There are a lot of leaks out of grand juries. It's not supposed to happen, but being the recipient of a leak, at least prior to the AIPAC [American Israel Public Affairs Committee] case that is scheduled for this fall, involving Steven Rosen, a former employee there—receiving leaks has not been considered a violation of any law, up until now.

But after this lawyer, Ellerman, gave the Chronicle reporter that information, he then went into court and filed a motion to dismiss the case on the grounds that leaks from the government had prejudiced his client's ability to get a fair trial.

At that point, I think, as an editor, you have an interesting question. Under the Los Angeles Times guidelines, for example, that would be a kind of violation of law and of trust with the reporter that would constitute a de facto waiver of the confidentiality. Even if you don't go that far—what the Chronicle did was, they sent the reporter back for a second meeting with that lawyer to get additional information out of the grand jury testimony. At that point, it seems to me, we as reporters are getting very close to obstruction of justice.

I think these are the kinds of things that undermine our credibility with the public. I think they are the kinds of things that we really need to talk about among ourselves. We really need guidelines where people clearly understand what promises they are making to sources and what their readers can really believe when they look at the publication or listen to a broadcast.

I will just close by saying that one of the disconnects that I figured out rather early is that most of us, as journalists, when interviewing someone on the record, take the notes carefully, but just assume that what we call either best-foot-forward or spin is an important part of the game. But when you are ten minutes into that interview and your source says to you, "Can we go on background," or, "Can we go off the record"—off the record, of course, means that you can't use it at all, and you ought to explain that you don't want to do it. That may not even be what they mean. But your ears tend to perk up and you say, "My God, after ten minutes of listening to all this mindless stuff that this guy has been serving up to me, he's actually going to tell me something I can use."

Journalists tend, in many ways, instinctively, to trust the background or off-the-record or confidential information more than what we are getting on the record. The public is precisely the opposite. When Dan Okrent was the public editor of The New York Times, he said that he got more letters of complaint from readers about anonymous sources than anything else in the paper. I think, as a consequence of that, the Times and many other publications have recently done a much better job of explaining to the public why they have granted anonymity to a source.

But in terms of lessons learned, I would say one is that we need a federal shield law; two, we need to be much straighter with our sources about exactly what the ground rules are; and thirdly, we need to be a lot straighter with our audience about why we are granting anonymity.

I think our rules call for about 25 minutes of questions. I would be happy to answer any that you have.

JOANNE MYERS:
Thank you very much.

I think you made a very strong case, so the verdict is in your favor.

I would like to open the floor to questions.

Questions and Answers

QUESTION: Among us lawyers, I think one of the most interesting things was watching—I have never seen it before in a grand jury investigation—Karl Rove went back four times to the grand jury. Normally, once, and that's it, a second time occasionally. But four times—obviously, we concluded that on each occasion he was telling a little more, until, finally, his lawyer worked out a deal and he wasn't prosecuted.

Why do you think Libby didn't go that way? To put a broader question, why did Libby do what he did, in your opinion? I know that may not be in your book, but I think it would be of interest to know.

NORMAN PEARLSTINE: Let me deal with Rove first, if I may, and then come back to Libby.

I think in both cases there was, first of all, a presumption that initially there was nothing wrong with what they were doing. We now know, for example, that the day that Pat Fitzgerald showed up for work, he realized that there was no underlying crime. First of all, the Intelligence Identities Protection Act of 1982 was narrowly drawn, really, to respond to Philip Agee and Counterpoint magazine and this effort to disclose names of thousands of CIA agents around the world. It wasn't really for a case such as this. The Espionage Act was also sufficiently vague that it wasn't going to be easy to bring a prosecution.

Thirdly, in addition to Libby and Rove, Richard Armitage had actually been the first one to tell both Novak and Bob Woodward about Joe Wilson's wife. Armitage didn't have the requisite intent, in any way, didn't know whether she was covert or not. Under the narrow definition of the 1982 act, I don't think she was covert, although Fitzgerald has said that she was and she said she was.

In any case, Rove and Libby, I think, both thought this was just Beltway politics—and what's going to come of it? I don't think they ever thought there was going to be a special prosecutor and all this, going forward.

In Rove's case, he first testified that he had no recollection of leaking the information to anyone. We had a role in his changing that testimony that I am not very happy about. In addition to putting Rove's name in the emails, it's pretty clear that Matt also told other people in the Washington Bureau—or other people in the Washington Bureau clearly understood that Rove was the source.

Time magazine had a reporter named Viveca Novak (no relation to Bob), and one of her sources was Karl Rove's lawyer, Luskin. They had a drink one night, after we had gotten our subpoena and Matt had gotten his. He said to her, "Well, Karl's not very worried about that subpoena because he wasn't Matt's source." She said, "That's not what I hear."

She didn't tell us that, but she told him that.

Luskin goes back, calls Karl, they go through this frantic search of emails, and they find, in fact, that Karl had sent an email to Stephen Hadley at the National Security Council saying, "I did have this brief conversation with Matt Cooper, where we talked about the Wilson story." He then runs back to the grand jury and changes his testimony, having already spoken to them. I think each additional visit to the grand jury was Fitzgerald learning more and more about what Rove actually knew and trying to question him about it. In the end, I do think that Novak's telling Luskin about this, in the spring of 2004, was what got Karl Rove off in terms of why he wasn't indicted.

With regard to Libby, what Fitzgerald says is that his primary purpose was to obstruct the investigation, to keep Fitzgerald from finding out what Cheney's role was and what the White House's role was in trying to discredit Joe Wilson.

I am a little bit troubled by that, because both Cheney and Bush did meet with the special prosecutor and both testified—

QUESTIONER:
They didn't testify.

NORMAN PEARLSTINE: They didn't testify under oath. Maybe the word "testify" is wrong. But they did speak to the special prosecutor.

But in any case, Fitzgerald's situation is, he shows up for work, he realizes there is no underlying crime, but he has federal agents saying to him, "We believe that the chief of staff to the vice president and the president's chief strategist have lied under oath to us." If you are a U.S. attorney, there is no way you are going to walk away from a case like that. And he didn't. That's how we got ourselves into the showdown that we did over the press and the First Amendment.

QUESTION: Yesterday's New York Times article suggested that you could have perhaps worked out some kind of compromise with Patrick Fitzgerald that would have not required you to turn over these notes. Do you think there is anything to that?

What's the prospect of a federal shield law that you are promoting here? Do you think that's going to happen?

NORMAN PEARLSTINE:
I don't think the federal shield law is going to happen. In fact, only seven senators have cosponsored it at this point, and only one of them is running for president. That is Chris Dodd.

So I think that's unlikely. There is just, frankly, not a lot of public sympathy for the press, not a lot of pressure on Congress to put through a shield law. And the Justice Department has been adamant in its opposition, saying it would restrict the war against terrorism. So I think in this environment, it's highly unlikely we will get a shield law.

The question of whether we could have worked out a deal or not, and the question of, if you will, Floyd Abrams's representation of us, which is a part of that—I don't know the answer for sure to the former. I do know that journalists from NBC, from The Washington Post were able to work out deals with the special counsel that managed to give limited testimony with regard to Libby and did not face the kind of constitutional conflict that we had, where we had the possibility of being held in contempt or having Matt go to jail. The Judy Miller situation was the same thing.

My problems in terms of Floyd were really more a feeling that he was conflicted—which is not to accuse him of conflict of interest, but that he was conflicted. I frankly blame myself for not figuring this out earlier. It was really only in the spring of 2005, after the Court of Appeals had affirmed Judge Hogan's contempt findings, that I really sort of dug into this and came to that conclusion.

I think, initially, our feeling was that our case and Judy Miller's were quite similar. But as I came to understand, it's one thing when an individual is held in contempt; it's another thing when a corporation is held in contempt. The fact that Time Inc. was being held in contempt and The New York Times was not was an important distinction.

Secondly, Floyd was representing Judy in another case, where she and Nick Kristof were involved in another case where Pat Fitzgerald was trying to get information involving a grand jury in Chicago.

Thirdly, Judy had gone on the air, on The Today Show, and criticized Matt's decision to discuss Libby with the special counsel. In fact, that led Bill Safire to write a column in The New York Times complaining about the weak-kneed Time Inc. lawyer who didn't stand up the way The New York Times stood up. Of course, it was Floyd in both cases. [Laughter]

I would say, in addition to that, that we had a philosophical difference. I think he is the most ferocious defender of the First Amendment I know in the bar and has had a splendid career saving a lot of reporters by being as aggressive as he has been in defending our First Amendment rights. What that meant in this case was that he basically had to get the Branzburg case reversed in order to keep us from contempt. He wanted to have that constitutional challenge.

I came to conclude that that was a hopeless case in this particular time and that, if you will, a criminal lawyer focused on trying to craft a deal with the special counsel might have given us a different kind of advice than what we got. It was particularly concerning to me, in the argument in front of the Court of Appeals, when Judge Sentelle said to Floyd, "I have to assume that there is no difference between this case and Branzburg, given that you have been unable to show me a difference the first, third, or fifth time I've asked you about it."

That's not what you want to hear from the Court of Appeals in your argument. Even Judge Tatel, who was on that panel and who is probably the most press-friendly judge in the D.C. Circuit, said that the absolutism of our case made it one that he could not go along with.

If you will, pushing more for a balancing test, looking for ways to distinguish ourselves from the cases of 1972, which were all about anarchists, about terrorists, not about, if you will, leaks from government officials and so forth, I think put us at a disadvantage.

QUESTION: I have a two-part question. One, why do you think that Robert Novak was not pursued more?

The other part, which is not necessarily related, is, is it within the realm of possibility that Scooter Libby will not be pardoned?

NORMAN PEARLSTINE: First of all, I think it's now very clear that Novak did talk to the special counsel very early and told him who his sources were. Then, either because his sources didn't want him to go public with what he told the special prosecutor or the grand jury or because he chose not to, he decided to keep that to himself. As I'm sure many of you know, in terms of the grand jury, neither the special prosecutor nor members of the grand jury can discuss what goes on in a grand jury, but anyone who testifies before a grand jury can. But they certainly don't have to.

In the case of Armitage, with Bob Woodward—and, I presume, also with Novak—Woodward has the first conversation with Armitage and learns about Wilson's wife, not by name. As the investigation is going on into the fall of 2003, when the CIA asks for the FBI to investigate and Justice to investigate, he realizes that Armitage is the source, and he calls up Armitage and says, "I think you were the source for this."

Armitage says, "You know, I think you're right. I am going to go to the special prosecutor"—I'm sorry, the prosecutor hadn't been named yet—"I'm going to go to the Department of Justice and tell them that I was your source and Novak's source."

That's why I say, the day Fitzgerald showed up, he knew that Armitage had already been the primary source for all of this and that Armitage wasn't trying to undermine anybody. He was just gossiping. He was having fun sharing information with trusted reporters.

I think Novak—basically, they didn't go after him because he testified immediately. But then he just didn't feel that he could go public with what he had testified to. He did, of course, testify to all of this in the trial of Libby.

Whether Libby gets pardoned or not, I don't really know the answer to that. It was very interesting that at the beginning of the trial, his primary counsel, Ted Wells, got up and said that he had pretty much been thrown under the tracks by the White House and that this trial would show that he was just a fall guy for the White House. That never came out at trial. Neither Cheney nor Bush was called to testify, and Libby didn't testify. So they retreated from that argument rather quickly.

But I do not consider a pardon a sure thing. I think it would be good for the book, but I don't think it's a sure thing.

QUESTION: One of the things that you haven't quite touched on here—you started it with the Intelligence Identities Protection Act, which did not apply in this case—is that under the terms of the legislation which created the CIA and the rest of the intelligence community, all of its members really are apart from the normal government civil service, and they report, essentially, to the president. They are not part of the whole operation. In this case, Valerie Plame worked for Bush's administration.

I think in Seth Lipsky's review of your book in this morning's New York Sun, he makes the same points that Victoria Toensing had made some time back. One is that the Identities Protection Act obviously did not apply. Second, at that time, there was an internal fight against the administration by certain elements of the intelligence community. So you had Michael Scheuer and others who really were working against the Bush administration in this whole operation in Iraq.

There is a problem here in terms of on what foundation this case was brought against Libby or anybody else. It's basically an internecine affair, in which case the administration did have the right to out Valerie Plame if it chose to, because she was one of their employees. So there was really no basis, at this point, to start charging people, as they did at the outset of this whole thing—that they had violated some law by revealing a confidential individual on the payroll of the United States government.

The other aspect I want to bring out is this. You mentioned earlier that there was a certain relationship of confidentiality for, let's say, lawyers, clergy, and everything else. That is a personal-services type of relationship, whereas the press doesn't really have that. The press can be used. It can have a vendetta. It can have a mission. It's a source of information. There, I think we have a bit of a problem. I think we saw that in the Plame case, along with Joe Wilson.

Just a couple of comments regarding that.

NORMAN PEARLSTINE:
They are both terrific comments. Let me try to go to them.

First of all, in terms of the Intelligence Identities Protection Act of 1982, one of the important things that it has as a provision is that in defining "covert," it has to be an agent who served overseas within the prior five years. Joe Wilson came out with his book in April of 2004, in which he talks about meeting Valerie Plame in the fall of 1997 and of her moving back to Washington in December of 1997. So the question then came up, does "served" mean "lived" or does "served" mean "made a trip on behalf of the CIA overseas during that period"?

Toensing and Codevilla, who were the two people who drafted the law, are adamant that it means "based overseas." While different judges have different views about how to play legislative history, that seemed pretty dispositive to me.

There was also the whole issue of intent. There, I think you are right that Cheney, in fact, got clearance from the president authorizing Libby to talk to Judy Miller. He didn't specifically state, "Talk to Judy Miller about Joe Wilson and about Valerie Plame," but it was clear that he was able to—it was really about the national intelligence estimate, that they had their discussion, which then was made public a couple of days later.

You are right that there was a kind of war going on. Tenet himself, as head of the CIA, on July 11, 2003, came out with a statement taking responsibility for these 16 words about Iraq trying to restart its nuclear program, saying that this never should have gotten into the president's speech and the CIA should have stopped it. Some people think he was just the fall guy there. Others feel that he came to understand that the CIA had a responsibility and hadn't adequately lived up to it.

All of which goes to the fact that I don't think an investigation was required. I don't think Ashcroft should have recused himself. I don't think Comey should have made an appointment [of friend and former colleague Patrick Fitzgerald as Special Counsel to head the CIA leak grand jury investigation].

All that said, if you are a U.S. attorney who shows up for work and you have federal agents saying that two of the most important people in the administration lied under oath, you are not going to look at the Intelligence—for a U.S. attorney, that's far more serious than the Intelligence Identities Protection Act. We are talking about lying to the feds.

So the perjury case—we tend to think, if there is no underlying crime, what's the big deal about the perjury? I think, at a gut level, a lot of us would come out— interestingly, Richard Cohen, in The Washington Post this morning, came out feeling that a pardon was appropriate for Libby, for precisely that reason.

I guess my own view is that it's pretty hard to run a government where, when you know people at this level are lying under oath, you decide not to pursue it.

But I hesitate to give you a dispositive answer on it. Fitzgerald filed affidavits in support of the subpoenas to reporters which do have some assertions about intelligence and about national security. Eight pages of the Court of Appeals opinion affirming the contempt findings are redacted, blacked out, in Judge Tatel's opinion, where he talks about all the reasons that Fitzgerald said he had for wanting to continue this investigation.

We have been trying to find out what is in those eight pages. Both Al Johnson and the Associated Press have an FOIA [Freedom of Information Act] suit pending. But until you know what is in there, it's, frankly, hard to do a cost/benefit analysis on Fitzgerald's investigation and know, really, about its appropriateness.

Your second question?

QUESTIONER: Regarding the shield law.

NORMAN PEARLSTINE: The current proposal on the shield law, I think, first of all, does have provisions in it that go to issues of national security. So it's not even clear, if there were a shield law, that it would have protected the reporters in this particular case.

But I did come away from this whole experience feeling that some kind of shield law and some kind of protection has to be afforded. I am not one of those people who think that it needs to be an absolute shield law. I do think that you do need to balance the issues and have a balancing test as part of it.

QUESTION: The reason Joanne called on me last was that I had asked Norman ahead of time if I could ask him about something that does not arise out of the book, but that I hope you will have an interest in.

Norman spent 22 years at The Wall Street Journal. He was its editor for many years. He obviously has a stake in its editorial integrity and independence.

So my question is, do you think Rupert Murdoch will succeed in winning—and also, if he does, what consequences for Wall Street Journal journalism will that have?

NORMAN PEARLSTINE:
I won't answer what consequences there would be for national security. [Laughter]

It's always hard to predict how these merger and acquisition issues play out. Murdoch put in an unsolicited offer at a 67 percent premium to where Dow Jones's stock is trading. Dow Jones's stock was trading in the mid-30s, 36 or so. He put in an offer of $60.00 a share. That would typically chase away a lot of competition and would make shareholders anxious to vote for it.

Dow Jones, not unlike The New York Times, The Washington Post, has two classes of stock. The Bancroft family, while only owning about 20 percent of the stock, has voting control over 62 percent. So far, they have resisted Murdoch's offer, feeling that it would be a threat to editorial independence. In addition, they have advisers who have been running around trying to find a competing offer. The Journal, particularly, has been quite aggressive in covering discussions between General Electric and Microsoft, between General Electric and Pearson [owner of the Financial Times], which suggests that there is at least an effort to come up with a competing bid.

There are a lot of plates spinning right now, and it's hard to make a prediction about it. If I had to guess, if Jack Welch was running GE and Andy Lack was running NBC, I think there would be the kind of aggressive—"hey, we're a really big company, and $5 billion here, $5 billion there, let's go for it. CNBC is really important, and if we brought Six Sigma and GE management style to Dow Jones, who knows what we could do with it?"

I think that Jeff Immelt, the current CEO [of GE], has been pretty adamant that he is not anxious to load up on more media, that between NBC and Universal, he has about as much media as he can stomach. But he might very well be willing to put CNBC into a new company, as an asset. I don't know that I see him putting a lot of cash in.

Pearson, I think, very much would feel threatened by a Murdoch-owned Wall Street Journal, not only in terms of the FT [Financial Times] on the continent, but even the FT in the United Kingdom. Robert Thomson, the editor of The Times of London, is a former FT top editorial executive and would love to really go more head-to-head with the FT in Britain.

But it would really stretch Pearson's balance sheet to have to come up with the $4 billion or so in cash that would be necessary to take out the non-family shareholders, assuming the Bancrofts stay in. So while that is an intriguing possibility that makes some strategic sense, I think the finances on it are pretty daunting. Pearson's shareholders are not looking for it to invest more heavily in newspapers. They finally have gotten the FT back into the black. It was losing money through some of the early years of this decade.

The family is hard to predict. It now has some 60 members, of different generations. Some have much more loyalty to the editorial independence that the Bancrofts have provided than others, who are pretty convinced that they will never see another $60.00-a-share offer in their natural lives. Murdoch has had a meeting with them. He has agreed to the creation of the kind of editorial board that has been in place at The Times of London. The family has said that's insufficient and that they want something closer to what the Reuter Trust provides, which is a board that can actually pick editors and could indeed block mergers. The Reuter Trust could block the Thomson-Reuters merger now, although they have agreed to go along with it.

It's difficult for me to see Murdoch agreeing to buy something he can't own and run and influence. I think, if he owns it, he won't have to change the editorial page. I think it's already there.

So the challenge will be, if you will, what does he do with the newsroom? There, it's a tough call. If you read Harry Evans's book Good Times, Bad Times, about what it was like to be the editor of The Times of London when Murdoch bought it—he got pushed out in a year. The paper swung from being rather critical of Thatcher to being very supportive of her. If you read the New York Post every day or if you look at Fox News, you realize that this is an owner who is probably much closer in temperament to Robert McCormick at the Chicago Tribune than to the Sulzberger family at The New York Times, in terms of its notions about how to use a publication.

That said, I was living in Europe when Harry Evans lost his job at The Times of London and Charles Douglas-Home came in as editor. In the three years that Douglas-Home was alive, while the editorial page swung to the right and became very supportive of Thatcher, I thought that his paper was very straight and very good. He had the support of the newsroom. He was able to stand up to Murdoch, and The Times did very good work during that three-year period.

[Current editor] Thomson himself insists that he has as much editorial independence as the editors at The Wall Street Journal. I am not a huge fan of The Times of London these days, but, frankly, aside from the Guardian, which I think has improved immensely, I think most of the so-called quality press in Britain has declined over the last couple of years.

For perverse reasons, I have been reading the Australian press over the last six months. His urban papers, the Telegraph in Sydney and Melbourne, are not very good, but The Australian is far and away the best newspaper in Australia, and as best I can tell, is totally straight.

So it's pretty tough to predict what Murdoch would do if he owned the Journal. He is a very smart guy. At 76, I'm sure some of the traits that got him to where he is and got him to do what he was doing when he was 51 are still in place. But I think it's important to him that the Journal remain a quality paper.

A long, rambling answer that went four minutes over your deadline. So forgive me.

JOANNE MYERS:
Thank you for an excellent discussion.

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