Commentary Magazine


Off the Record by Norman Pearlstine

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

by Norman Pearlstine
Farrar, Straus & Giroux. 282 pp. $25.00

Like many other books, this one was written mainly to enable its author to talk back to his critics. In June 2005, Norman Pearlstine’s critics had landed on him like a ton of bricks. He was at that juncture the editor-in-chief of Time Inc., a high-visibility segment of the Time Warner media colossus. In that capacity, he had opted to turn over interview notes demanded by Patrick Fitzgerald, the special prosecutor investigating the famous “outing” of a CIA operative named Valerie Plame.

This decision also required a Time magazine correspondent, Matthew Cooper, to testify before a grand jury. Cooper had pledged not to reveal his sources (there were two of them), and was horrified by the prospect of cooperating with the government investigation. Pearlstine’s decision—and, the book makes clear, it ultimately was his to make—was instantly labeled a shameful sell-out.

In the early stages of the Plame investigation, Pearlstine and the company had argued that the First Amendment protected a reporter’s right to keep his sources confidential. In the media world, this was at once a hard doctrine and a sacred principle. Even after federal courts had rejected the entire argument, and the U.S. Supreme Court had declined to review those rulings, journalists from all directions had been raucously demanding resistance to Fitzgerald’s subpoena.

A scant few endorsed Pearlstine’s decision—made two days after the Supreme Court acted—and they are quoted at length in a chapter called “Welcome Support.” But the press was overwhelmingly arrayed against him. In successive tumultuous meetings with Time’s Washington bureau and the magazine’s senior editors in New York, Pearlstine rapidly discovered that his own staff was enraged at his stance.

On top of everything else, his critics were able to contrast his capitulation with the supposedly high-minded deportment of the New York Times, which was in a roughly similar confrontation with Fitzgerald. The Times declined to comply with the court’s rulings, and one of its reporters, Judith Miller, was held in contempt and sent to prison.

A Times editorial, titled “Judith Miller Goes to Jail,” began by stating: “This is a proud but awful moment for the New York Times and its employees.” The editorial positioned both Miller and the paper itself as acting in the tradition of the Boston Tea Party, Rosa Parks, Martin Luther King, Jr., those who had fearlessly stood up to Joseph McCarthy, and unnamed others said to have served “the great tradition of civil disobedience” by flouting unjust rulings. James Goodale, for many years the general counsel of the Times, proclaimed Pearlstine’s decision “disgraceful” and led a campaign (ultimately unsuccessful) to expel him from the board of the Committee to Protect Journalists, an organization committed to press freedom worldwide.

_____________

 

In arguing with his critics and calumniators, Pearlstine devotes several chapters to walking through his own experience in the world of big-league journalism. Obviously possessed of immense talent, he began as a copy boy at the New York Times in 1967 and by the mid 1980’s was the top news executive at the Wall Street Journal. In 1994 he was recruited for the job at Time Inc. by Gerald Levin, the CEO of Time Warner and a former classmate at Haverford College.

In Pearlstine’s narrative, it rapidly emerges that his view of journalism is heavily colored by his legal training. His family had expected him to become a lawyer and join his father’s Philadelphia firm, but after passing the bar exam he headed directly for a press job. And on the evidence of his own case it appears that a top editor who is also a lawyer will have a unique angle of vision. In particular, it will occur to a lawyer, if not to an editorial writer, that civil disobedience is something that can be driven only by individual conscience, and that the concept becomes nonsense when applied to the behavior of a giant corporation.

Pearlstine is also horrified by the confusion even among high-level journalists as to what obligation is being incurred when a source tells a reporter that something is “off the record” or “not for attribution” or is being mentioned only as “background,” or, alternatively, as “deep background.” No longer riding in the company elevators—Pearlstine left Time Inc. in 2005 and is now a senior adviser to the Carlyle Group, a private-equity firm—he feels free to talk candidly about screw-ups committed by his troops in the period leading up to his fateful choice to comply with Fitzgerald’s demands in the Plame case. It gradually becomes apparent that the screw-ups were serious matters and were deeply implicated in that decision.

Here the role played by Cooper, the deputy chief of Time’s Washington bureau and a 20-year veteran of Washington reporting, is critical. It is obvious that Pearlstine is fond of Cooper, whom he admires both as a “stand-up guy” and a gifted amateur comedian. It is also obvious that Cooper’s behavior was problematic.

In his reporting on the Plame case, Cooper had interviewed President Bush’s aide Karl Rove and Vice President Cheney’s aide I. Lewis (Scooter) Libby. Cooper told his bosses at Time that he had spoken to Rove on “double super-secret background,” as he breathlessly put it in an e-mail to two of his colleagues, and was pledged to keep Rove’s identity secret. Rove was also named in many other e-mails accessible to other colleagues; thanks to these and normal water-cooler gossip, it was not long before dozens of Time employees knew the identity of the man Cooper was allegedly shielding.

Another problem: although Cooper and Rove had talked on a “deep background” basis, meaning that the source should not be identified in any way, Cooper had proceeded to write an article for Time in which the Rove material was attributed to “an administration source.” And in still another consequential mistake, Cooper had decided early on that neither Rove nor Libby would be identified, even if that meant prison for him personally. He had come to this high-stakes position even though neither of the sources had asked for it.

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Pearlstine is surely correct in viewing this last move as a calamity that thoroughly confused the issue of reporters’ rights and privileges. In this area, however, Pearlstine has himself added to the confusion.

At several points in his book, we are told that there is a large and important difference between “anonymous” and “confidential” sources. In both cases, the reporter is pledging that the source will not be identified in the news story itself. We are also told that the anonymous source may rapidly lose this promised protection if an investigation is triggered for some reason: “If you lose in the courts, you give up the name.” But, according to Pearlstine, the source with confidential status must be protected even in the face of contempt citations. Confidential status cannot of course be granted in situations where the grant would violate the law or established public policy. Otherwise, we are told, “the grant of confidentiality is an enforceable contract and . . . any publication that reveals the source’s name can be held liable.”

In support of this proposition, Pearlstine cites Cohen v. Cowles Media Co., a 1991 Supreme Court decision. Having never previously heard of the anonymous/confidential distinction in the course of my 50-plus years in journalism, and viewing the two terms as more or less synonymous in the journalistic context, I found all of this to be passing strange. So I hastened to read Cohen v. Cowles, and it instantly reassured me.

The decision does indeed say that when publications promise somebody that his name will not be used, they have entered into a binding contract. But nowhere does the decision say that this is true only of “confidential” sources; in fact, it uses that term and “anonymous” interchangeably.

Whatever the case, readers of Off the Record are advised to ignore Pearlstine’s extensive elaborations of the anonymity/confidentiality distinction, and simply focus on what I take to be his underlying point: that journalists have a range of protections they can offer to their sources, and it pays to be clear both with them and with one’s employer about exactly what is being promised.

When a great deal of protection is being offered, it would seem mandatory for the reporter to be communicating with his editors at an early stage. If a reporter is prepared to go to prison to honor his promise, and if he expects his bosses to support him down the line, even when facing steep fines on the publication, it had better be for an important cause. In the decision that came before Pearlstine, none of these conditions was met. Cooper, in his negotiations with Rove and Libby, had simply assumed that his sources were entitled to protection all the way to his own incarceration; his superiors, including Pearlstine, only discovered this when the special prosecutor came calling. It was precisely because there had been no genuine negotiations about the protection being offered that Pearlstine felt himself under no obligation to defy the special prosecutor and the courts.

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Pearlstine makes a persuasive case that the decision for which he was hammered was in fact the right decision for Time Warner. He is also persuasive in talking back to the Times (whose publisher, Arthur Ochs Sulzberger, Jr., has himself retreated some distance from the paper’s editorial invoking “civil disobedience”). He is illuminating and frequently fascinating in describing the undisciplined, narcissistic, hit-and-miss world of Washington journalism, whose practitioners often seem to be making up the rules as they go along.

But Pearlstine does not come across as an effective manager of these troops. He admits that he did not give Cooper and others the kind of guidance they obviously needed. His decision to create a new set of editorial guidelines (included in his book as an appendix) appears to have been made long after he became aware of the habitual sloppiness of even experienced reporters, and only in response to the crisis triggered by the subpoenas. And those guidelines incorporate needless confusion about what is confidential and what is anonymous.

Finally, for a lawyer, Pearlstine seems grievously woolly-minded in the policy recommendations with which he closes his book. His principal proposal—a federal shield law to protect journalists from more subpoenas—has many observable defects, elaborated in these pages last February in Gabriel Schoenfeld’s “Why Journalists Are Not Above the Law.” And there is something else obviously awry in Pearlstine’s backing of this idea.

Proponents of shield laws regard the privilege they would bestow on reporters as analogous to the privileges arising from the doctor-patient or lawyer-client relationship. That is, they depend on the idea of a professional relationship. It seems almost perverse to be demanding a comparable privilege for journalists even while documenting the absence of professionalism in their work.

About the Author




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