Monday, June 18, 2007

Editor’s Charge: His Lawyer Fell Short

The New York Times
June 18, 2007

People like to gripe about their lawyers after their cases go south. Listen, for instance, to Norman Pearlstine, who presided over the debacle that ended with Time Inc.’s disclosure of the identity of a source to a special prosecutor two summers ago.

“One of America’s most ferocious defenders of the First Amendment, Floyd Abrams, gave us less good advice than we deserved,” Mr. Pearlstine, the former editor in chief of Time Inc., writes in a book to be published next week. “The more I reviewed Abrams’s work,” he adds, “the more I was disappointed with his performance.”

The book, “Off the Record,” is a vivid and engaging account of Time’s legal adventures in trying to protect a reporter, two of his sources, press freedom, the rule of law and a media conglomerate during the investigation by a special prosecutor, Patrick J. Fitzgerald, into the disclosure of the identity of Valerie Wilson, an undercover C.I.A. operative.

But it is the book’s sharp and sustained attacks on Mr. Abrams, a lion of the legal establishment, that have media lawyers buzzing.

Mr. Pearlstine, who has a law degree but never practiced, has worked hard to make sense of the sometimes conflicting legal, professional and ethical obligations of reporters who rely on confidential sources. His book is a valuable if often idiosyncratic contribution to the debate, one that will strike many journalists as pliant and impractical.

But veins of anger run through Mr. Pearlstine’s reflections. He is critical of some of Time Inc.’s journalists and staff lawyers, and he has special disdain for Mr. Abrams.

“In his early years as a First Amendment lawyer,” Mr. Pearlstine writes, “Abrams had a reputation for putting his clients’ interests — winning cases — ahead of making law. But now I thought he had become too much the constitutional lawyer, more focused on overturning Branzburg” v. Hayes, the 1972 Supreme Court decision that rejected First Amendment protection for confidential sources, “than on pragmatic ways in which we might fashion a compromise.”

(Here I should pause for some disclosures. I worked at Mr. Abrams’s firm for four years as a young lawyer, helping represent both Time and The New York Times in libel cases. Mr. Pearlstine mentions me four times in his book, always nicely. Mr. Abrams also represented The Times and Judith Miller, then a Times reporter, in the Fitzgerald investigation. Mr. Pearlstine is harshly critical of The Times’s public relations and litigation strategy.)

In an interview, Mr. Abrams expressed measured sympathy for Mr. Pearlstine, who found himself boxed in by terrible legal and financial pressures after the Supreme Court turned down the magazine’s last appeal. Mr. Pearlstine decided to comply with a court order calling for Time to turn over documents showing that its reporter, Matthew Cooper, had discussed Ms. Wilson with the White House aide Karl Rove.

“There’s no doubt that he got torn apart by some critics in the press who didn’t understand that the decision he had to make was not an easy one,” Mr. Abrams said of Mr. Pearlstine. “But easy or hard, his decision was at odds with 200 years of American journalistic history.”

The book, Mr. Abrams said, “combines a bevy of misleading statements mixed with gratuitous attacks that are obviously designed to take the journalistic searchlight off of him.”

Mr. Pearlstine retired from Time Inc. not long after his decision, which has come to overshadow a glittering journalistic career that included a decade as the top editor at The Wall Street Journal and another as Time Inc.’s editor in chief, where he oversaw more than 150 magazines. He is now with the Carlyle Group, a private equity firm.

Mr. Pearlstine’s broader point is correct. Time, like The Times, seems to have misplayed its hand. While it is impossible to know if the two news organizations and their reporters could have found a way to respond to Mr. Fitzgerald’s subpoenas short of a constitutional battle royale, it seems pretty clear that they could have tried harder to look for a compromise.

The Washington Post, faced with similar quandaries, managed to find ways to protect its reporters and cooperate with Mr. Fitzgerald.

Time’s fundamental misstep was its astonishing failure to approach Mr. Rove for permission to cooperate in the investigation even though Mr. Cooper, as he recently disclosed in Portfolio magazine, “desperately wanted to make a deal that could get us out of this mess.”

In an interview, Mr. Pearlstine said Mr. Abrams was “militant about the idea that there could be no contact with Rove or his lawyer.”

Mr. Abrams denies that. “It was everyone’s view, including Norman’s, that we shouldn’t call Rove,” Mr. Abrams said. “His book admits this.”

Mr. Cooper, in his article, mostly blamed Jim Kelly, then Time’s managing editor, for the magazine’s stance, though he added that Mr. Kelly acted “in concert with Pearlstine.”

Failure is often said to be an orphan, but it’s more complicated than that. Failure has a father — but it’s always the other guy. Mr. Pearlstine’s book reads like a paternity suit.

But the charge will not stick. Mr. Abrams was a lawyer with hardheaded and sophisticated clients, and he did what he was instructed to do.

There is excellent evidence, for instance, that Mr. Abrams could make pragmatic compromises. It was Mr. Abrams, after all, who negotiated a deal with a lawyer for Mr. Cooper’s other source, I. Lewis Libby Jr., that allowed Mr. Cooper to testify.

Mr. Pearlstine switched horses, moreover, as the case approached the Supreme Court, hiring Theodore B. Olson to take Mr. Abrams’s place. Nothing of consequence changed as a result.

“I knew that firing the nation’s most famous First Amendment lawyer just as we were beginning to prepare our Supreme Court petition,” Mr. Pearlstine writes, “might not go unnoticed among journalists and attorneys, many of whom worshipped Abrams.”

But it did mostly go unnoticed. Until now.


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