Divided Front -Media Split Under Pressure In the Leak Probe
Divided Front - How Media Split Under Pressure In the Leak Probe
Ms. Miller of the Times Had A Separate Dispute With Special Prosecutor
Mr. Abrams Loses a Client
By LAURIE P. COHEN, JOE HAGAN and ANNE MARIE SQUEO
Staff Reporters of THE WALL STREET JOURNAL
July 29, 2005; Page A1
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In May, 500 members of the media elite rose to their feet to applaud a First Amendment award the Reporters Committee for Freedom of the Press gave to lawyer Floyd Abrams.
Jointly presenting the award at a gala dinner in Manhattan were Matthew Cooper of Time magazine and Judith Miller of the New York Times. For a year, Mr. Abrams had worked to fend off a special prosecutor seeking testimony about the two reporters' confidential sources, as a federal grand jury probed who had leaked a Central Intelligence Agency operative's name.
But the appearance of unity among a lawyer and his media clients was illusory. More than a month before the dinner, Time Inc. had dismissed Mr. Abrams as its lead counsel in the leak probe, believing it needed a new strategy to face the U.S. Supreme Court.
Mr. Cooper had long before selected his own criminal attorney, concerned that Mr. Abrams couldn't adequately represent both Ms. Miller and him. In Mr. Cooper's view, there were too many differences in their circumstances. Ms. Miller had publicly criticized seeking waivers from government officials that would allow reporters to testify about confidential conversations. Mr. Cooper had obtained just such a waiver.
Mr. Cooper also worried about Ms. Miller being at odds with the same prosecutor in an entirely different investigation -- one he feared could taint him by association.
Earlier this month, Time decided to comply with a federal court order requiring it to turn over Mr. Cooper's notes. The Times endorsed Ms. Miller's refusal to reveal any confidential sources. As a result, she is now in jail in Alexandria, Va.
For the news business, this case presents the biggest test of confidential sources in decades. It has led to the worst split in memory between two media giants in an area where news organizations usually present a united front grounded in the First Amendment.
The controversy has done little good for the media's image. Some see arrogance in Ms. Miller's defiance, while others have criticized what they consider to be Time Inc.'s caving to authority.
Meanwhile, two years after the identity of CIA operative Valerie Plame was leaked to the press, it remains to be seen whether prosecutor Patrick J. Fitzgerald will conclude that anyone violated the federal law prohibiting the intentional disclosure of a covert agent's name or whether he will file perjury or obstruction of justice charges.
His investigation remains a potential source of political trouble for the Bush administration. Mr. Cooper has now written that top White House aides Karl Rove and I. Lewis "Scooter" Libby talked with him about Ms. Plame, the wife of a former diplomat who is a critic of the administration, and her CIA affiliation. Neither referred to her by name or mentioned her covert status. Earlier, the White House said that it had no evidence that the officials were involved with the case. Mr. Rove is the president's top political strategist, and Mr. Libby is Vice President Dick Cheney's chief of staff.
The chain of events that led to the controversy began with President Bush's Jan. 28, 2003, State of the Union address. In the speech, he said, "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."
A year before, in February 2002, former Ambassador Joseph Wilson IV went to Niger to investigate whether Iraq was buying uranium ore there. He had been asked to do so by officials at the CIA, where his wife was a covert operative. He concluded that there wasn't clear evidence of uranium purchases. On July 6, 2003, about three months after the U.S. invasion of Iraq, Mr. Wilson wrote an opinion article for the New York Times, alleging that the Bush administration had manipulated intelligence about Saddam Hussein's weapons programs "to justify an invasion of Iraq."
Five days later, on July 11, 2003, Mr. Cooper called Mr. Rove to ask about the ex-diplomat's claims. The 42-year-old reporter had been on the White House beat for only two weeks after a stint as deputy chief of Time's Washington bureau. An amateur stand-up comedian, Mr. Cooper is the husband of Mandy Grunwald, a prominent Democratic strategist and a daughter of the late Henry Grunwald, the former editor in chief of Time Inc.
According to a first-person account Mr. Cooper published in Time magazine last week, Mr. Rove warned him, "Don't get too far out on Wilson." Mr. Rove also said that the ex-ambassador's wife, whom he didn't refer to by name, worked at the CIA on efforts to curb weapons of mass destruction, Mr. Cooper wrote.
On July 14, 2003, conservative syndicated columnist Robert Novak identified Ms. Plame in his column, which runs in the Washington Post and other newspapers. He cited "senior administration officials" as his sources.
A few days later, Mr. Cooper wrote an online article for Time that also identified Ms. Plame. The Time reporter wrote in his recent first-person account that he couldn't recall whether he first learned her name by reading Mr. Novak's column or from doing research on the Google Web site.
The Justice Department opened an investigation of the leak. In a move that would prove awkward when its own reporter got caught up in the probe, the Times argued in an editorial on Oct. 2, 2003, that then-Attorney General John Ashcroft ought to bring in an outside prosecutor to pursue the probe vigorously. Journalists rely heavily on "the willingness of government officials to defy their bosses and give the public vital information," the editorial said, which is why the Times opposed leak investigations "in principle." However, the editorial added, "that does not mean there can never be a circumstance in which leaks are wrong."
By December, the White House had picked James Comey, then the Manhattan U.S. attorney, to be the No. 2 official at the Justice Department. Three weeks later, he turned to Mr. Fitzgerald, a close friend and career prosecutor, to be special counsel in charge of the leak investigation. The two men had worked together in the 1990s in the U.S. attorney's office in Manhattan. The Times heralded the appointment, saying in a Dec. 31, 2003, editorial that Mr. Fitzgerald needed "true operational independence."
Mr. Fitzgerald focused heavily on seeking information from reporters. It isn't publicly known what interaction he had with Mr. Novak. But in the spring of 2004, he sought notes and testimony from Mr. Cooper. That prompted Time and Mr. Cooper in April to hire Mr. Abrams.
Mr. Abrams, 69, was an obvious choice for any news organization facing a legal challenge. In 1971, he helped persuade the Supreme Court that the federal government lacked sufficient justification to stop the New York Times from publishing the Pentagon Papers, a classified history of U.S. involvement in Vietnam. Since then, Mr. Abrams, a partner with the New York-based firm of Cahill Gordon & Reindel, had taken the lead in numerous legal fights over the First Amendment, including many cases involving the Times and Time Inc. publications.
Mr. Fitzgerald also turned his attention to Ms. Miller. She had written for the Times about Iraqi efforts to obtain biological and other weapons. Some of these articles supported the Bush administration's claim that Saddam Hussein had an arsenal of weapons of mass destruction. In an unusual move, the Times later acknowledged that some of Ms. Miller's reporting had been too credulous.
Ms. Miller, 57, never wrote about Ms. Plame. White House phone records and Mr. Fitzgerald's questioning of government officials may have piqued his interest in her.
Four months after Mr. Abrams agreed to represent Time Inc. and Mr. Cooper, the attorney was hired by the Times to represent Ms. Miller. Their common goal: bar Mr. Fitzgerald from gaining access to the reporters' notes and sources. Journalists sometimes promise confidentiality to protect sources who otherwise wouldn't provide newsworthy information. To maintain credibility, journalists consider it important to uphold confidentiality agreements, even under government pressure.
Mr. Cooper, however, quickly grew concerned that his interests might differ from Ms. Miller's, according to his criminal lawyer, Richard A. Sauber. In August 2004, Mr. Cooper gave a limited deposition to Mr. Fitzgerald about a conversation he had with Mr. Libby, the vice president's chief of staff. Mr. Cooper did so only after Mr. Libby had signed a document, drafted by Mr. Abrams, that waived Mr. Cooper's confidentiality pledge to the White House official.
Six weeks later, on Oct. 8, 2004, Ms. Miller went on NBC's "Today" show and strongly criticized such waivers as coercive. She argued that government officials who decline to sign them could risk losing their jobs, although there is no evidence that happened in this case. Arthur O. Sulzberger Jr., the chairman and publisher of the Times, joined Ms. Miller on the show and strongly backed her position.
The Times deferred to its reporter's choices, Mr. Abrams says. "The view at the Times is that the reporter has the right to decide," he explains. "From Judy's perspective, the first thing she wanted to know was what to do to protect her confidential sources, rather than what to do to stay out of jail."
But Ms. Miller's nationally publicized views "tended to undercut Matt's position," since he had sought a waiver from Mr. Libby, says Mr. Sauber, the Cooper lawyer. "He was concerned there would be other points where his interests" and Ms. Miller's "might diverge, and he wanted a lawyer whose only client would be him," Mr. Sauber adds.
When Mr. Cooper gave his limited testimony to Mr. Fitzgerald, he was following the same path as NBC's "Meet the Press" host Tim Russert and Washington Post reporters Walter Pincus and Glenn Kessler. Mr. Libby had given those reporters permission to discuss with the prosecutor whether or not they had talked about Ms. Plame.
Mr. Fitzgerald apparently had enough evidence from those reporters to satisfy him because they were never threatened with jail. When Time Inc.'s editor in chief, Norman Pearlstine, saw the others receiving waivers to talk, he says he hoped Mr. Cooper's cooperation would do the same for him. "I looked at what Russert and Pincus did and said, 'How do we get one of those?' " Mr. Pearlstine says. But apparently unlike the others, Mr. Cooper had more information about another source, who turned out to be Mr. Rove.
Mr. Rove's attorney, Robert Luskin, has said his client "has done nothing wrong." Mr. Libby's attorney, Joseph Tate, hasn't returned phone calls seeking comment.
In addition to the clashing views on waivers, Mr. Cooper soon learned of something else that distinguished him from Ms. Miller: She was in Mr. Fitzgerald's cross hairs in an unrelated case.
In his capacity as U.S. attorney in Chicago, Mr. Fitzgerald had subpoenaed Ms. Miller in July of 2004, seeking several weeks of her phone records from the fall of 2001. He was trying to determine the identity of confidential sources she had used for an article about two Islamic charities under investigation for possible financing of terrorism.
Mr. Fitzgerald said in court papers that reporting by Ms. Miller and another Times staffer inadvertently tipped off the charities about planned federal raids, giving the targets a chance to destroy documents and records. The federal government has frozen the assets of both charities.
Mr. Abrams began representing Ms. Miller and the Times in connection with the Islamic charities matter in July 2004.
"I was concerned as to how" that second probe involving Ms. Miller "would affect Matt's position," says Mr. Sauber, a partner at Fried Frank Harris Shriver & Jacobson, a New York-based firm. Mr. Sauber says Mr. Cooper learned of the Islamic charities probe only after the Times went to court to block the subpoena of Ms. Miller's phone records in October 2004.
Mr. Sauber says he and his client worried that Mr. Fitzgerald might feel particularly antagonistic toward Ms. Miller because of the compromising of the raids on the Islamic charities. Some of that animus might rub off on Mr. Cooper if the two journalists mounted a joint defense in the Plame investigation and used the same lawyer. There was also the danger that judges who reviewed the leak investigation might look at Ms. Miller and the Times more skeptically because of the separate charities case.
Some lawyers and legal-ethics experts say that Mr. Abrams's decision to represent both reporters, despite their different situations, wasn't unethical, but it may have been unwise. "Prudence dictated in this case that the reporters had different interests and would have been well served by having two different legal perspectives in their civil case," says Harvey Silverglate, a civil-liberties attorney in Boston who has taught at Harvard Law School.
Mr. Abrams disagrees. "I didn't think Judy's relationship with Fitzgerald would have anything to do with the prosecutor's relationship with Matt," he says. The overriding interest in responding to the leak probe was to present a unified position based on the First Amendment, he adds.
Time Inc. was aware of the Islamic-charities matter when Mr. Abrams agreed in August 2004 to represent Ms. Miller in the Plame case, the lawyer points out. "As a legal matter, I thought both parties benefited from single representation," he adds. "Though it is true that at the end of the affair, there were differences of approach by Time Inc. and the New York Times."
Mr. Abrams expected Mr. Cooper's limited deposition in August 2004 to be the only time the reporter would have to submit to questioning. "The agreement was Pat [Fitzgerald] could come back for more, but the understanding was he was unlikely to do so," Mr. Abrams says.
But the deposition, held in the Washington office of Mr. Abrams's law firm, only whetted Mr. Fitzgerald's appetite. "Matt's testimony about Libby led Pat Fitzgerald to decide he wanted more information about others," Mr. Abrams explains. Specifically, the prosecutor wanted Mr. Cooper to confirm that Mr. Rove was a source of information about Ms. Plame. Within weeks, Mr. Cooper had a second subpoena in hand.
Mr. Fitzgerald subpoenaed Ms. Miller as well, but she wasn't willing to cooperate. Mr. Fitzgerald "wanted things we were unprepared to give," Mr. Abrams says, declining to elaborate. "The fact that Fitzgerald served a new subpoena on Matt was something Judy took into account." Seeing what happened to Mr. Cooper, the Times reporter feared that if she agreed to talk once, that would only open the door to more demands from the prosecutor.
Mr. Abrams fought the subpoenas in the Plame probe up to the appellate federal court in Washington. His argument before a three-judge panel last December faltered when he seemed to have trouble explaining why the current case was different from Branzburg v. Hayes, a 1972 Supreme Court ruling in which the justices said that a reporter who had witnessed a crime had no right to keep his sources confidential.
Jim Kelly, Time magazine's managing editor was in the courtroom in December and briefed his boss, Mr. Pearlstine, the next day. Things went "very badly," Mr. Kelly recalls saying.
Until then, Mr. Pearlstine says he viewed the leak investigation as "a speck on the horizon, at best." Now he realized that "there were institutional issues that weren't being addressed," he says. Asked to elaborate, he would say only that he came to appreciate the legal differences between defending an individual and defending a corporation. Time Inc. technically owned an electronic file that contained Mr. Cooper's notes, he says. As a result, the parent company could potentially be held in contempt of court and forced to pay large fines if its magazine and reporter didn't cooperate.
Ms. Miller, by contrast, apparently kept personal possession of her notes, and the Times's view is that it never had them.
In February, the appeals court ruled 3-0 against Mr. Abrams in the Plame case. Based on Mr. Fitzgerald's secret representations to the court, the judges said that national security overrode any First Amendment concerns.
By the time the court ruled against Mr. Cooper and Ms. Miller, Time Inc. had lined up former Solicitor General Theodore Olson, a well-connected Republican, to represent it and Mr. Cooper.
Mr. Abrams continued to represent Ms. Miller. In February, he scored a victory over Mr. Fitzgerald in the Islamic-charities case, when a federal judge in Manhattan invoked the First Amendment to block the prosecutor from obtaining Ms. Miller's 2001 phone records.
With Ms. Miller and Mr. Cooper potentially facing civil-contempt findings and jail in the Plame investigation, Mr. Pearlstine spoke with Mr. Sulzberger, the chairman and publisher of the Times. Mr. Pearlstine says that Mr. Sulzberger suggested they offer buttons to employees of their organizations declaring, "Free Judy, Free Matt, Free Speech." Mr. Pearlstine demurred.
On June 29, the Supreme Court declined to step into the Plame case.
Mr. Cooper testified before the grand jury after Mr. Rove agreed to waive their confidentiality agreement. As a result, the Time reporter avoided jail. Ms. Miller now could remain in jail in northern Virginia until the Plame grand jury's term expires in October -- or possibly longer, if the grand jury is extended.