Valerie Scooter And Me

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Late last year, I had breakfast with Pincus at the Madison hotel, in the shadow of the Washington Post building. At 74, Pincus is still a reporter, a rarity in a young person’s profession. Just a few years ago he earned a law degree, because his father had lived to 95 and Pincus expected the same longevity and wanted a second career.

Over an English muffin he had ordered “burnt,” I asked Pincus how he had avoided being held in contempt of court, as I was twice. When he was subpoenaed by Fitzgerald in 2004, Pincus had to protect Fleischer, but he believed that if the source had testified about their conversation, the reporter was under no obligation to keep it secret. The source had, in effect, waived any privilege by going to the grand jury. This was not the Time Inc.-Cooper stance of the source having to give us some kind of personal waiver before a confidential conversation could be discussed. When Pincus determined that Fleischer had testified about their conversation, the septuagenarian went ahead—vowing not to utter Fleischer’s name while under oath.

I asked him if that was a distinction without a difference, since the prosecutor knew Pincus’ source was Fleischer. “A rose is a rose,” I said.

“But I didn’t say it,” Pincus insisted. This kind of distinction might seem like nitpicking to others, but it made the difference between one corporation’s colliding with the Supreme Court and another’s avoiding it altogether.

If the Post handled its case the best, the New York Times botched its the worst. The subpoena of Judith Miller came just over a year after the Jayson Blair fabrication fiasco that roiled the paper and prompted the resignation of executive editor Howell Raines. Miller was not the best vehicle for redemption. Her reporting about Iraq’s purported weapons of mass destruction was so flawed that the Times felt compelled to issue a massive clarification about it. Nevertheless, the Times and Miller decided to launch a major First Amendment battle rather than seek a settlement.

I didn’t know Miller well. We’d met a few times before and had been seated next to each other at a dinner at my mother-in-law’s Hamptons home in the summer of 2003. I remember that Miller had defended the war vociferously while her husband, Jason Epstein, the former head of Random House, seemed to look on skeptically. (She declined to comment for this article.)

Miller’s fate and mine became joined in the summer of 2004, when I thought my involvement in the case had come to an end. I had, with Libby’s permission, testified earlier that year about my conversation with him. But while I was sitting in a diner during the Republican National Convention in New York City, one of Time Inc.’s lawyers called to tell me I would be receiving a second subpoena. A couple of weeks earlier, Miller had been subpoenaed, and Abrams, the longtime counsel for the New York Times, had agreed to represent her. He now had three clients in the same case—me, Miller, and Time Inc. (I remain grateful to Time Inc. for shelling out millions for our joint lawyers and, generously, for my private counsel.) But even though it seemed as if we all had separate interests, my company wanted to keep Abrams and was paying my bills, so what could I do?

In the fall of 2004, my case went forward with Miller’s. Two reporters and representatives from one company were now on a fast track to imprisonment. Despite the rush to the Supreme Court, I thought maybe we could cut a deal. I was lying sick in bed on Friday, September 10, 2004, when I told Time managing editor Jim Kelly that I wanted to ask Rove for a waiver. Kelly didn’t say no on the phone, but the next day Richard Sauber, my personal lawyer, came to see me at my home. Looking sporty in a Lacoste shirt and shorts, he told me that Kelly, an old friend of his, had called and said he didn’t want to make a deal. “This is insane,” I said.

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