Valerie, Scooter, and Me
K Street to Capitol Hill
The Cost of War
Over the next nearly four years, I was subpoenaed twice, fought testifying, wrestled with the prospect of going to jail, and employed some of the most renowned attorneys in America, including Floyd Abrams, the legendary First Amendment champion, and Ted Olson, George W. Bush’s solicitor general, who won Bush v. Gore. I was even teased by the president of the United States himself. When I went to interview him in the Oval Office for Time’s “Person of the Year” story in 2004, his first words to me were “Cooper, I thought you’d be in jail by now.” Weirdly, I was facing prison for protecting Rove, who sat a few yards away. “What can I say, Mr. President?” I replied. “The wheels of justice grind slowly.”
In March they stopped, or at least paused, with the trial of Libby, who was convicted on four felony counts of perjury, making false statements, and obstruction of justice. One of these involved his conversation with me. He was acquitted on one count, making false statements to the F.B.I., which stemmed from our chat. Libby’s scheduled to be sentenced in June, though his attorneys say he’ll seek an appeal.
Lost in the news of the verdict was another picture of the C.I.A. leak story—the tale of corporate culture, of media companies making decisions that ranged from the adroit to the self-immolating.
When I was subpoenaed in the leak case in the spring of 2004, my first instinct was to abide by the credo of all journalists: Protect your source. The problem was that the law was not really on my side. State laws afford a privilege to journalists akin to that extended to priest and penitent. Federal law provides scant protection, and I was in federal court. So while Time Inc. and I were united in public about fighting the subpoena, behind the scenes I desperately wanted to make a deal that could get us out of this mess. I feared the worst—Oz and The Shawshank Redemption. Time Inc.’s lawyers and management need not have been as worried: The corporation faced, at that point, only a $1,000-a-day fine. Still, they were of the belief, widespread among journalists, that you should fight like hell—until you reach the point at which you can’t fight anymore.
Pearlstine reached that point after the Supreme Court refused to take our case in June 2005. He ordered my notes and emails delivered to the federal court whose subpoena had been upheld. After Pearlstine’s decision, I told the press that I regretted but understood his position. In the coming days, a profession that believes a reporter should never betray a source would pillory Pearlstine. He was particularly lambasted by the New York Times. Its editorial page skewered him; its news pages saw several critical stories about Pearlstine. Times publisher Arthur Sulzberger Jr. even issued a statement saying he was “deeply disappointed” by Pearlstine’s decision. While even Richard Nixon obeyed the Supreme Court, journalists, like mobsters, consider it a badge of honor to extend their middle finger to the courts.
Unlike the New York Times, which was not a party to the case, Time Inc. faced both civil and criminal prosecution. In a legal twist, Time Inc., as the owner of my notes and emails, was in legal jeopardy, but the New York Times was not. The Times had argued that Miller had never written a story and her notes were hers alone. The court agreed. And while it would be one thing for a journalist like me to engage in civil disobedience, which I was prepared to do—at least until I was in criminal contempt (a felony), at which point I was likely to cry uncle—it’s quite another for a media conglomerate to do so. I could do the full Mandela. Time Inc. couldn’t.
Many in the media said Pearlstine complied with the court order because of the financial threat facing Time Inc. and its parent company, Time Warner. He said no, and I tended to believe him. The fine would have risen, but it would have remained a minor consideration for a corporation that had presided over what, to investors, had seemed like the greatest evaporation of wealth since the days of the Weimar Republic. “We’d taken a $100 billion write-off,” Pearlstine told me last year, referring to the collapse of Time Warner’s market capitalization following the merger with AOL. “Almost any fine a judge gave us would have paled.” True, it didn’t have to be a G.D.P.-of-Spain-level fine to make Time Warner’s bereft shareholders weep harder, but Time Inc. could have bargained any fee down to a tolerable level.

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