On the record about ethics

“I was born to be a lawyer,” writes Norman Pearlstine in one of the autobiographical chapters to his fascinating book, “Off the Record: The Press, the Government, and the War Over Anonymous Sources.”

The author may have followed his distinguished father through law school and to the bar, but he has made his own, equally distinguished career as a journalist -- first as reporter and correspondent, then as the Wall Street Journal’s managing editor and, finally, as editor in chief of Time Inc.

It was in the latter capacity -- which Pearlstine surrendered two years ago for a job with the Carlyle Group -- that he oversaw the defense of Time reporter Matthew Cooper, whose notes and testimony were demanded in the course of the federal government’s prosecution of the former chief of staff to Vice President Dick Cheney, I. Lewis “Scooter” Libby, who was charged with lying to a grand jury investigating the disclosure to the media of ex-CIA agent Valerie Plame’s identity.

As editor in chief of Time Inc., Pearlstine made the decision to turn over Cooper’s notes to Special Prosecutor Patrick J. Fitzgerald and persuaded the reporter to testify at Libby’s trial. This book is an inside account of how the editor arrived at those decisions and, along the way, a lively and compelling account of 1st Amendment jurisprudence in the modern era.

Pearlstine’s rationale for this decision, which he forthrightly admits was rejected by nearly all his journalistic colleagues -- many of long standing -- turns on a couple of very finely argued distinctions.

One is the “big difference between anonymous sources, whose identity we would pledge to keep out of our publications, and confidential sources, whose identity we would protect in the face of court orders and contempt citations.”

The latter are absolutely protected, according to Pearlstine, because “a confidential source has a contractual relationship with a reporter and with the publication.”

It’s a lawyerly distinction, which Pearlstine recalls that he first made in a 1986 memo to the Wall Street Journal’s staff: “I was comfortable with reporters granting anonymity to their sources, but I thought a pledge of confidentiality required more thought and more review, since it could conceivably lead to jail for the reporter and substantial fines for the publisher.

“Since reporters were supposed to be trying to get their sources to go on the record whenever possible, it seemed axiomatic that the source had to ask for confidentiality. A reporter couldn’t make a source ‘confidential’ without the source’s agreement.”

When Cooper first interviewed White House political strategist Karl Rove about the Plame situation, he sent a series of e-mails to his editors in Time’s Washington bureau. As Pearlstine argues:

“A review of Matt’s e-mails made clear that Rove had stipulated he was speaking on ‘deep background’ (Matt had called it ‘super secret background’), but there was no indication that he had demanded the confidentiality that Matt had unilaterally and, therefore, improperly granted him. By my reasoning, Rove was an anonymous source at best. In their hurried conversation, Rove had not asked and Matt had not promised that, if their conversation ever became part of a criminal legal matter, Matt would go to jail to protect Rove’s identity.

“That was my ‘tipping point’ -- the reason that finally changed my mind. Rove wasn’t a confidential source because he hadn’t asked to be one.”

So why had Pearlstine acquiesced to a yearlong legal battle to sustain the contrary claims by Cooper and his immediate editors? As a good manager, Pearlstine says, he was willing to back his guys -- until the Supreme Court said it would not intervene in the contempt process.

At that point, another of Pearlstine’s fine distinctions kicked in. Because Time Inc. was the owner of Cooper’s e-mails and notes, refusal to comply with a lawful subpoena for their surrender would have required a publicly traded company to engage in civil disobedience. That, according to Pearlstine’s analysis and that of other lawyers upon whom he relied, is out of the question -- except in the most limited of circumstances, which did not extend to the Cooper case. Liability concerns, duties to stockholders and the greater good of keeping a corporate board of directors out of the editorial decisions of its news media properties exerted more compelling claims on Pearlstine’s thinking.

So, too, did his belief that no news organization can put itself above the reach of the law. Whether that, in fact, was the only other alternative to surrender is a different question, which his analysis does not engage.

At the end of the day, self-justification is the most deeply felt impulse in Pearlstine’s account. As he writes in his conclusion: “Time Inc., on behalf of itself and Matt Cooper, spent millions of dollars fighting [special prosecutor] Patrick Fitzgerald in the courts, and we lost every round. When the Supreme Court refused to hear our plea, I folded our hand and turned over our notes to the grand jury. The decision was unpopular, but under the peculiar circumstances of our case it was right.”

Arguing that he made the right decision compels Pearlstine to be hard on a lot of other people, starting with Cooper, whom he characterizes as rather giddy and definitely indiscreet, an ambivalent character influenced by his media-savvy wife, Mandy Grunwald. Pearlstine’s analysis makes Cooper’s ham-fisted mishandling of basic reportorial technique the first cause of the news organization’s subsequent torment: “Cooper is an honest hardworking reporter, doing what other honest, hardworking journalists do in Washington. But he was wrong in the ways in which he dealt with his sources. None of his editors, including this one, provided adequate guidance.”

The author also is hard on former New York Times reporter Judith Miller, her editors and publisher, all of whom Pearlstine characterizes as people with minds far less rigorous than his own -- unsteady and erratic allies in the fight over the subpoenas. For example, he takes the New York Times’ editorial on the jailing of Miller to task for failing “to distinguish between an individual’s and public company’s right to engage in civil disobedience -- one of the important distinctions that had been at the heart of my decision to hand over the notes.”

There’s also this: “One of America’s most ferocious defenders of the First Amendment , Floyd Abrams, gave us less good advice than we deserved.”

It’s hard always being the smartest and the most dispassionate person in the room, but Pearlstine bears the burden well. He may have been born a lawyer, but he’s made most of his living as a journalist and wants -- indeed, demands -- to be respected for that. He deserves great credit for making about as strong and lucid an argument for a federal reporter’s shield law as you’re likely to read anywhere.

“Off the Record” is a terrifically candid and genuinely fascinating book by a shrewd and vastly experienced journalist. Still, his account of his own conduct in the Libby affair turns on very fine distinctions, and such distinctions can be cut too finely to bear the weight of the circumstances in which they’re made. There’s a great old Irish expression that describes a man in that position, somebody trying to have things both ways:

“He wants to run with the fox and hunt with the hounds.”

timothy.rutten@latimes.com