Time magazine reporter Matthew Cooper, facing a jail term in the Valerie Plame leak investigation, never asked White House political adviser Karl Rove to release him from a pledge of confidentiality because Cooper's attorney believed that any conversation between the two men could be construed as obstruction of justice.
"I forbid Matt to call him," Richard Sauber said yesterday. "I cringed at the idea. These two witnesses would have to explain their discussion before the grand jury."
Cooper's last-minute avoidance of imprisonment, on the day that New York Times reporter Judith Miller was taken into custody, capped an intense period of backstage maneuvering that turned as much on coincidence as on a prominent journalist and his high-level informant struggling through intermediaries to protect their reputations.
Cooper testified Wednesday after Sauber worked out a waiver of confidentiality with Rove's attorney in the case, which began with columnist Robert D. Novak revealing in July 2003 that Plame, the wife of an administration critic, was a covert CIA operative. Cooper's story was posted online days later.
The fallout continues to cause turmoil at the nation's oldest newsmagazine, where two reporters this week presented their bosses with evidence that confidential sources are wary of dealing with them because Time Inc. Editor in Chief Norman Pearlstine surrendered Cooper's notes in the case. That decision, after Time had exhausted its legal appeals, was "probably the most difficult moment," said Cooper's wife, Democratic consultant Mandy Grunwald.
"Did it make sense to still go to jail when his company had already broken his confidence to his sources? His lawyer and many friends said, 'Are you crazy? Don't go to jail now when they've already handed over your notes.' He just decided he had made the commitment and only the source could break the commitment," she said.
Sauber said that on July 3, two days after the notes were turned over, special prosecutor Patrick J. Fitzgerald told him that he still needed Cooper's testimony and that the reporter could face criminal contempt charges, which would be likely to carry a substantially longer jail sentence. Sauber said he warned Cooper: "You could have a felony on your record."
Despite the threat, Sauber said, Cooper insisted he would "never be able to work" in journalism if he accepted the general waiver that Rove and other White House officials had given journalists. "I just thought those blanket waivers handed out essentially by one's boss are hard to consider uncoerced," Cooper said in an interview yesterday.
Cooper testified last year about his conversations with I. Lewis "Scooter" Libby, Vice President Cheney's chief of staff, under what he considered a personal waiver from Libby. But Cooper faced contempt again when Fitzgerald demanded to know who his other source was, and Sauber said they were "unwilling" to contact Rove "based on a fishing expedition."
On July 6, the day Cooper expected to be jailed, Sauber was taking a red-eye flight back from a family vacation in Alaska and changed planes in Chicago. He bought a Wall Street Journal and saw Robert Luskin, Rove's attorney, quoted as saying: "If Matt Cooper is going to jail to protect a source, it's not Karl he's protecting."
After checking with Cooper, Sauber called Luskin and asked if Rove would approve a waiver that mentioned Cooper by name. They hammered out a statement that said Rove "affirms his waiver . . . concerning any conversation he may have had with Matthew Cooper" in July 2003.
Cooper left the impression he had talked to Rove that day when he said his source had released him in "somewhat dramatic fashion." He said yesterday that "I definitely should have been more clear."
Luskin has said that he merely reaffirmed the blanket waiver by Rove, who is the president's deputy chief of staff, and that the assurance would have been available at any time. He said that Cooper's description of last-minute theatrics "does not look so good" and that "it just looks to me like there was less a desire to protect a source."
On Monday, two Time correspondents, upset about Pearlstine's decision to release Cooper's notes, showed top company officials e-mails from sources who said they would now have trouble trusting the magazine. The tense meeting in the Washington bureau with Pearlstine, Time Inc. Editorial Director John Huey and Managing Editor Jim Kelly was "angry" and filled with "bile," said several participants who requested anonymity because the meeting was confidential.
One reporter, Mark Thompson, circulated copies of an e-mail from a woman who deals regularly with whistle-blowers, saying that she would not turn over a confidential source to Time and that the magazine had slid to the bottom of her media list. He told Pearlstine the Cooper decision had "made our job a heck of a lot tougher." Another, Brian Bennett, displayed a similar note from a source with the name blacked out.
When Huey told the staff that they were in a conservative judicial environment, Michael Weisskopf, who lost an arm in Iraq, accused him of a "cop-out."
Kelly said the meeting "accomplished what it set out to do, to have all 18 correspondents tell Norm their concerns and fears about his decision and have Norm explain his decision maybe a little differently than it had been explained initially in the press."
Kelly said "the biggest issue" was the argument that "I can't count on the company to stand behind me when I make a promise to a potential source." But he said Pearlstine argued that the Plame case was unique and that "there are many instances in which the editor in chief would stand behind you and defy the Supreme Court," even if that meant paying fines and going to jail.
The staff is frustrated, Kelly said, because "it's an emotional thing for journalists. It's baked in all our bones that we will protect our sources."