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The NYT Pinata

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By Howard Kurtz
Washington Post Staff Writer
Thursday, October 13, 2005; 9:42 AM

Everyone seems to be beating up on the New York Times these days.

Not so much for what it's written, but for what it hasn't, in the Judy/Scooter/Karl/Valerie imbroglio.

I'm a little more sympathetic than some of the critics. But the Times has put itself into something of a box.

Put yourself in Bill Keller's shoes. Your reporter gets subpoenaed to testify about a confidential source. The natural reaction of any red-blooded journalist is to fight that in court, and the Times did, all the way to the Supreme Court. And lost. And Judy Miller, refusing to accept what she deemed a less-than-voluntary waiver from Scooter Libby--even though several other journalists had taken Libby's offer of personal waivers--went off to jail.

Leave aside the criticisms of her WMD reporting. She paid a heavy price, standing on principle.

But then, after 85 days, she cuts a deal to testify before the special prosecutor after Scooter writes her a flowery letter about how she should come out to watch the aspens changing colors. Miller testifies about her source, does a couple of softball TV interviews but refuses to say what she told the grand jury (unlike Time's Matt Cooper, who quickly told all).

The Times coverage seems unusually restrained. It gets beat online on Miller's release from jail and beat on her belated discovery of her notes involving an earlier, and potentially important, conversation with Libby.

Keller assigns a big piece, and my guess is it would have run last weekend had Pat Fitzgerald not summoned Miller back for a second conversation yesterday. So the big takeout could be coming soon, and maybe it will put some of the criticism to rest--if it explains what Miller knew, when she knew it and why she never wrote a story.

But therein lies the problem. The newsgathering mission of the Times--the responsibility to report aggressively on a story about the outing of a CIA operative that has reached the highest levels of the White House--has collided with the understandably human need to protect its reporter. In such a circumstance, the journalism must come first. Judy Miller is free to either talk to the Times or not talk to the Times about what she knows, but the paper's editors should disclose what they know, and as soon as they possibly can.

Keller tells me the Times has a good track record of reporting on itself--the Jayson Blair case, which cost Keller's predecessor his job, would be Exhibit A--and deserves the benefit of the doubt.

Fitzgerald must have found something of interest yesterday, because he's bringing Miller back before the grand jury today. Sounds very much like he's building a case against someone.

In a note to his staff yesterday, Keller said: "Once her obligations to the grand jury are fulfilled, we intend to write the most thorough story we can of her entanglement with the White House leak investigation. It's a complicated story involving a large cast, and it has required a meticulous reporting effort -- in part to chase down and debunk some of the myths kicked up by the rumor mill.

"Judy has talked to our reporters already about her legal battle, but the story is incomplete until we know as much as we can about the substance of her evidence, and she is under legal advice not to discuss that until her testimony is completed. This may be frustrating to our armchair critics, and it is frustrating to all of us, but it is not unusual even for this investigation. Matt Cooper of Time wrote about his conversation with his source, Karl Rove, only after his cooperation with the special counsel was completed and the contempt citation had been vacated."

Times columnist Frank Rich said on my show Sunday that he's "frustrated" by the situation: "I think the Times, now that she has testified, has to be transparent about what happened, why her situation was different from Matt Cooper's, and indeed ultimately about her grand jury testimony, which, as I understand it legally, she's free to disclose, or will be presumably after Mr. Fitzgerald is finished with her."

Arianna slams Keller, saying "his paper finds itself in the midst of what may turn out to be the worst crisis in its history -- scooped on a daily basis on a story it should own, virtually eliminating itself from covering what could be the biggest scandal of the Bush administration, its credibility crumbling faster than Judy Miller's image as a selfless journalistic martyr. . . .

"Miller and the Times under Sulzberger and Keller, have done everything imaginable to avoid coming clean about this story. . . . to avoid showing their work."

Editor and Publisher reports criticism from other editors:

"The all-holds-barred reporting by the Times about a national story partly based in its own newsroom has drawn comments from several daily newspaper editors, who tell E&P that the Gray Lady needs to open up more about one of its own. . . .

"'What bothers me is that they have been quiet about it since she got out of jail, not sharing with the readers anything,' says Doug Clifton, editor of The Plain Dealer in Cleveland. 'Once she was out, they owed it to readers to share what she testified. She ought to have shared with readers what she shared with the grand jury.'

"Clifton also questioned the Times' approach in putting together a story about Miller's jailing if editors who have a long association with her, or have championed her actions, are part of the process."

Jay Rosen , citing his appearance on my show, recalls saying that "the paper 'has lost the capacity to tell the truth about itself in this story.' (I also said it may yet recover.) What we don't know is why the Times has gone into editorial default. Nor do we know when normal operations will be restored. The explanations given don't make much sense. From what I have been able to learn, concerned journalists at the paper, former Times staffers, and peers in national journalism are as baffled, as alarmed as the bloggers and critics. And of course no Times person even thinks of going on-the-record with any doubts. . . .

"What combination of things prevents the New York Times from telling us more right now? Again we don't know, and the Times isn't telling. The only explanation we have is: 'the paper had been wary of revealing too much about the case for fear of compounding Ms. Miller's legal problems.' It feels constrained because the Fitzgerald investigation goes on. Which works for why Miller is not divulging her testimony.

"But would it explain why the columnists have been silent on the case since her release?

"Would it tell us why the Times hasn't covered the reaction and controversy in journalism circles over the terms of Miller's release?

"Does it make you curious that Keller has written no editor's note about the glaring inability of the paper to tell us what it knows, or even do normal journalism?"

American Journalism Review editor Rem Rieder says: "The longer we're in the dark, the worse the Times looks. It begins to look like there's something to hide. And credibility accrues to those nasty theories that Miller really went to jail to salvage her reputation in the wake of the botched WMD coverage."

Public Editor Byron Calame has held his tongue, telling Salon in an e-mail: "I continue to watch developments in the Plame investigation with special interest. If and when I have something to say, I will say it to the readers of the Times."

Here is this morning's NYT report:

"Judith Miller, the reporter for The New York Times who spent 85 days in jail before cooperating with a federal grand jury investigating a C.I.A. leak case, will testify again on Wednesday after discussions with the prosecutor about a conversation she had in June 2003 with a senior White House official.

'Judy met this afternoon with the special counsel to hand over additional notes and answer questions,' Bill Keller, The Times's executive editor, said in a message to the staff on Tuesday afternoon. 'She is to return to the grand jury Wednesday to supplement her earlier testimony.'

"Ms. Miller's meeting with the prosecutor, Patrick J. Fitzgerald, focused on notes that she found in the Times newsroom in Manhattan after her appearance before the grand jury on Sept. 30. She took the notes during a conversation on June 23, 2003, with I. Lewis Libby, Vice President Dick Cheney's chief of staff.

"An entry in her notes referred to Joseph C. Wilson IV, the former ambassador whose criticisms of the Bush administration's Iraq policy had begun circulating in the capital in the spring and summer of 2003. Mr. Wilson's critique was based on a trip he had taken to Africa in 2002 to examine whether Iraq had sought nuclear material from Niger."

On the Miers controversy, the Los Angeles Times has the latest eye-opening news:

"Before President Bush nominated White House Counsel Harriet E. Miers to the Supreme Court, his deputy chief of staff, Karl Rove, called influential Christian leader James C. Dobson to assure him that Miers was a conservative evangelical Christian, Dobson said in remarks scheduled for broadcast today on his national radio show.

"In that conversation, which has been the subject of feverish speculation, Rove also told Dobson that one reason the president was passing over better-known conservatives was that many on the White House short list had asked not to be considered, Dobson said, according to an advance transcript of the broadcast provided by his organization, Focus on the Family.

"Dobson said that the White House had decided to nominate a woman, which reduced the size of the list, and that several women on it had then bowed out. 'What Karl told me is that some of those individuals took themselves off that list and they would not allow their names to be considered, because the process has become so vicious and so vitriolic and so bitter that they didn't want to subject themselves or the members of their families to it,' Dobson said, according to the transcript.

"Dobson said that he and Rove did not discuss Roe vs. Wade, the Supreme Court decision that established a woman's right to end a pregnancy, or how Miers might judge abortion-related cases."

The hearings could turn into a version of stump-the-guest, says the Boston Globe :

"Some of the advocacy groups that are concerned about Supreme Court nominee Harriet E. Miers's lack of a record on social issues are favoring a new approach to thwarting her nomination: Asking the nominee, who has no judicial experience, complex questions about constitutional law and hoping she trips up.

"Groups are circulating lists of questions they want members of the Senate Judiciary Committee to ask Miers at her confirmation hearings. The activists' thinly veiled hope is that Miers will reveal ignorance of the law and give senators a reason to oppose her. . . .

"The groups oppose Miers because her scant record offers them insufficient proof that she would be a staunch conservative. But, mindful that judicial nominees resist talking about ideology, they believe that a better strategy is to make her appear unqualified."

Could Miers get squeezed by both sides?

"Harriet Miers, unlike previous Republican nominees, will face hostile questioning from both Democrats and Republicans when she appears before the Senate Judiciary Committee," says the Washington Times . "Several Republican senators -- including committee Chairman Arlen Specter of Pennsylvania and Sam Brownback of Kansas -- have said they won't be cutting her any slack just because she's a Republican nominee. And Republican staffers say privately that they're researching her background as if she were a 'third-party nominee.'"

Rich Lowry says the White House spin on Miers is getting lame:

"The White House and its allies have long argued that it is wrong to bring a judicial nominee's faith into the discussion about his merits, and any attempt to do so amounts to religious bigotry. When it was suggested that John Roberts's Catholic faith might be an area for inquiry in his confirmation, White House allies recoiled in horror.

"Now the White House tells conservatives that Miers will vote the right way because she's a born-again Christian. This is the chief reason that some prominent Christian conservatives are supporting her, in a blatant bit of right-wing identity politics. They apparently believe her religious faith will determine what she thinks about the equal-protection clause, the separation of powers, and other nettlesome constitutional issues."

Ann Althouse , a Wisconsin law professor, has softened on Miers, who, she notes, "appears to have never shown any interest in constitutional analysis at all. This lack of interest in theory has bothered a lot of lawprofs, including me. Conlawprofs are biased in favor of theory. If you are going to devote your life to the subject of constitutional law, as an academic subject, you are probably the sort of person who is attracted to abstractions, theories, and larger patterns and aspirations. You are going to tend to approve of jurists who have a similar frame of mind, a large capacity for theory, that makes you and the people you surround yourself with so impressive. Now, who is this Harriet Miers, this practicing lawyer, who presumes to go on the Court and write the opinions we must spend our lives reading and analyzing?

"Even when you have little hope that the nominee will decide the cases the way you want, you have a problem with the presumptuousness of putting a person like that on the Court. Roberts was one thing, but she is quite another. In him, we saw ourselves, but she is just an attorney. The very idea! Thinking about it that way has begun to thaw my opposition to Miers. Why is it not a good thing to have one person on the Court who approaches constitutional decision making the way a lawyer would deal with the next legal problem that comes across the desk?"

How much does Dick Morris hate Hillary? In his new book "Condi vs. Hillary," according to the New York Daily News , the one-time Clinton adviser and his wife Eileen McGann write:

"'If elected, Clinton would 'reinvent what we have called the secret police to destroy those who stand in her way.'

"'Hillary has a sense of entitlement that leaves her vulnerable to the temptations of financial misconduct,' they write.

"Clinton is not just 'untested' by crisis, the authors write, but the former First Lady is a crybaby who 'often succumbs to tears in times of adversity.'"

Secret police ? Did I doze off and miss something during the Clinton years?

Forbes has the latest on Yahoo and the blogosphere:

"Look out: The blogs are coming to Yahoo! Some 750,000 blogs and other user-generated content will soon show up on Yahoo! News search pages, presented right alongside news from mainstream media.

"But is Yahoo! taking another big step in the blurring of lines between professional media and grassroots journalism? The company is testing a new search tool that includes results from thousands of mainstream media outlets, and a separate results column for blogs, its new My Web social search and pictures posted to the company's Flickr photo service."


© 2005 The Washington Post Company

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