Time Inc. announced today it will comply with a court order to hand over the notes of correspondent Matthew Cooper to a prosecutor investigating the leak of an undercover CIA operative's identity, and so avoid jail time for the magazine reporter.
In a statement issued by Time magazine's editor-in-chief Norman Pearlstine, Time Inc. said the delivery of the confidential source documents "certainly removes any justification for incarceration."
The announcement came three days after the U.S. Supreme Court refused to hear an appeal by Cooper and Judith Miller of the New York Times and one day after a federal court judge repeated a threat to jail the two journalists for contempt for refusing to disclose their sources. The reporters told the judge yesterday they were prepared to spend four months in jail rather than answer questions about their confidential government sources.
In an interview with CNN, Pearlstine said he believes the documents will "obviate the need" for any testimony from Cooper. That seemed to imply that Cooper's notes will either include the name of his source or somehow point obviously to the source's identity.
Arthur Sulzberger Jr., publisher of the New York Times, issued a statement saying the newspaper was "deeply disappointed by Time Inc.'s decision to deliver the subpoenaed records." He noted that one of its reporters served 40 days in jail in 1978 in a similar dispute.
"Our focus is now on our own reporter, Judith Miller, and in supporting her during this difficult time," Sulzberger said.
Although Time said it would comply, the statement by the magazine and comments by the magazine's editor-in-chief following the announcement left no doubt the magazine strongly disagreed with the courts' orders.
Pearlstine told the Washington Post that the magazine felt it had no choice but to comply with the U.S. Supreme Court's decision. "As much as I'm a staunch defender of editorial independence, I don't believe there's anything in the Constitution that says journalists are above the law," he said. "The alternative to complying would be a kind of anarchy."
Pearlstine said, "those of us in the news business are constantly pointing fingers at others who act like they're above the law. We can't now assert that we are."
The Time statement said: "We believe that the Supreme Court has limited press freedom in ways that will have a chilling effect on our work and that may damage the free flow of information that is so necessary in a democratic society. It may also encourage excesses by overzealous prosecutors.
"Although we shall comply with the order to turn over the subpoenaed records, we shall continue to support the protection of confidential sources," the statement continued. "The same constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity."
At a packed court hearing yesterday, Chief U.S. District Judge Thomas F. Hogan chided Cooper and Miller for seeking more time to convince him they should not be jailed. He said then that he was considering ordering them jailed as soon as next Wednesday.
The two had refused to answer prosecutors' questions in an investigation of whether federal officials illegally disclosed the identity of undercover CIA operative Valerie Plame.
Hogan gave the reporters' attorneys 48 hours to file documents explaining why the pair should not face the penalty he levied nine months ago.
"The time has come," he said. "If people got to decide which court orders they wanted to obey, we would have anarchy."
Cooper and Miller were found in contempt of court in October for refusing to answer questions from special prosecutor Patrick J. Fitzgerald about their conversations with anonymous government sources in the summer of 2003. Fitzgerald's investigation focuses on whether senior Bush administration officials knowingly leaked Plame's name to syndicated columnist Robert D. Novak after her husband, former ambassador Joseph C. Wilson IV, alleged in a Times opinion piece that the Bush administration had twisted intelligence information to make the case for war in Iraq.
Cooper and Miller both did some reporting on the issue, though Miller never wrote a story.
Hogan postponed the penalty as the reporters appealed. On Monday, those appeals ran out when the Supreme Court refused to hear their case.
Yesterday, Hogan questioned the reporters' assertions that they are keeping a promise not to identify a confidential source. In appellate court filings, Fitzgerald has indicated that he knows the identity of Miller's source and that the official has voluntarily come forward.
"The sources have waived their confidentiality," Hogan said. "They're not relying on the promises of the reporters. . . . It's getting curiouser and curiouser."
Attorneys for Miller and Cooper did not respond directly. They had said the investigation appeared to have changed from a probe of whether officials identified a covert agent to whether they perjured themselves in testimony to prosecutors. The latter, they said, does not justify jailing reporters.
Fitzgerald declined to comment, but in court papers unsealed yesterday he said the case remains unchanged and focuses on potentially serious criminal misconduct.
Fitzgerald urged the judge to jail the reporters as soon as possible and to start enforcing a $1,000-per-day penalty he had levied against Time.
"We shouldn't enable people to think court orders are optional," Fitzgerald said. "When President Nixon got the order to turn over the [White House] tapes, he didn't say, 'Let me think about my alternatives.' " "This case is not about a whistle-blower," Fitzgerald added. "It's about potential retaliation against a whistle-blower."
Lawyers for Time asked Hogan yesterday for time to review their options, saying that they were "considering" turning over the notes. Hogan replied that if Time continues to refuse, he will assess a retroactive fine of $270,000, which he said reflects the wealth of the magazine's corporate owner, Time Warner.
Cooper declined to answer questions after the hearing. He later told Reuters that he would rather Time not turn over his notes but acknowledged that the magazine had its own obligations to consider. Miller declined to comment as she left court.
Plame's name first appeared in Novak's column on July 14, 2003. He wrote that two anonymous government sources had told him that Plame had recommended her husband for a CIA mission to assess whether Iraq was attempting to purchase uranium for use in a nuclear weapons program. Novak has refused to comment on whether he cooperated with Fitzgerald. Yesterday, in an interview on CNN's "Inside Politics," Novak said he is still barred from talking about the investigation but said he will write about it when it ends. He said he thinks the facts will surprise people.
"I deplore the thought of reporters -- I've been a reporter all my life -- going to jail for any period of time for not revealing sources." he said. "They are not going to jail because of me . . . and those people who say that don't know anything about the case."
Washington Post Staff Writer Carol D. Leonnig contributed to this report