Time Inc.: When to Give Up a Source

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After Time Inc. agreed to turn over the requested materials to Fitzgerald's office, speculation quickly surfaced over whose names would be identified. Much of that focused on Karl Rove, senior adviser to President George W. Bush. Rove's lawyer, Robert Luskin, said Cooper called Rove during the week before Novak's story appeared but declined to say what they discussed. Luskin said Rove "has never knowingly disclosed classified information." The lawyer said he has received repeated assurances from Fitzgerald's office that Rove is not a target in the case.

The investigation has been bizarre from the start. For one thing, it's still unclear whether any laws were broken in the Plame revelation. (Deliberately disclosing an operative's name is illegal but only if the government is actively trying to conceal its relationship with that person.) Yet Fitzgerald's wide-ranging investigation has involved subpoenas of at least five journalists, and several, including Cooper, NBC's Tim Russert and the Washington Post's Walter Pincus, have testified on at least a limited basis. The courts have repeatedly denied Cooper and Miller privilege to protect their sources. After the Supreme Court refused to hear the case, Pearlstine says he concluded that Time Inc. had an obligation to follow the law and obey the ruling. "An organization that prides itself on pointing its finger at people shouldn't be breaking the law itself," he said.

Some pundits have countered that an act of civil disobedience by Time Inc.--declining to follow an "unjust" ruling while being prepared to suffer the legal consequence--wouldn't be the same as placing oneself above the law. In Pearlstine's view, "when the courts rule that a citizen's obligation to testify before a grand jury takes precedence over the press's First Amendment right, to me, going against that finding would put us above the law." Others have questioned whether Time Inc. was putting corporate priorities over journalistic ones. Continued refusal to cooperate with the judge would have meant increased fines (well above the current $1,000-a-day penalty). Pearlstine vehemently dismissed the idea of any such calculation. "I am solely responsible for this decision, and the threat of fines never figured into my thinking," he said. He added that he did not consult with Time Inc. CEO Ann Moore or Richard Parsons, CEO of Time Warner, Time Inc.'s parent.

In handing over the requested materials, Pearlstine and Time Inc. made the argument that there was now no need for Cooper to testify because Cooper's files contain at least some of the information Fitzgerald has been seeking. In the interim, Cooper and Miller have asked Judge Thomas F. Hogan to sentence them, if it comes to that, to home confinement or, barring that, to federal prison camps, as opposed to maximum-security prisons or the notorious Washington jails.

Will Time Inc.'s actions alter the rules of journalism? Some think so. "This is going to be open season on journalists," says Dalglish. "Litigators are out there thinking, Why not subpoena them? I'm probably going to win." In Pearlstine's view, Time Inc.'s decision is a narrowly framed one that applies only to a case that involves a federal grand jury with access to secret testimony about a national-security issue. He says he still believes in the value of confidential sources--and fighting to keep them that way as far as the law allows.