Norman Pearlstine was not a happy camper. It was spring 2005, and for almost a year the editor-in-chief of Time Inc. had been wrestling with a pair of subpoenas issued by special counsel Patrick Fitzgerald seeking notes and testimony from Matthew Cooper, a reporter in Time magazine’s Washington bureau.
Fitzgerald, of course, was investigating who had disclosed the identity of Valerie Plame, an undercover CIA agent, to several prominent journalists. Time Inc. had already attempted to mollify Fitzgerald by allowing Cooper to offer limited testimony regarding his conversations with sources. But when Fitzgerald demanded additional material and testimony, Cooper refused, and the company backed his decision. Federal judge Thomas Hogan held both Cooper and Time Inc.—as well as the New York Times reporter Judith Miller, who had also declined to cooperate with Fitzgerald—in contempt of court. Many journalists treated Time and the Times as champions of the First Amendment.
That was certainly the mindset of the Times’s publisher, Arthur Sulzberger Jr. At a meeting with Pearlstine to discuss the case, Sulzberger produced a button that read FREE JUDY, FREE MATT, FREE PRESS, and proposed that ten thousand of them be distributed to staff members at their respective news organizations. Floyd Abrams, the noted First Amendment attorney who more than thirty years earlier had helped win a landmark decision for the Times in the Pentagon Papers case, represented both companies in court. To Pearlstine it was clear that Sulzberger saw the Plame fight as another historic test of the First Amendment.
But privately Pearlstine was having second thoughts. “Although we were ready to spend millions of dollars on litigation, I had to ask whether this strange case was the one on which we wanted to draw the line by ignoring a contempt order,” Pearlstine recalls in Off the Record. Eventually, Pearlstine broke publicly with Sulzberger, fired Abrams, and acceded to Fitzgerald’s demands that Time Inc. surrender Cooper’s interview notes. The decision let loose a deluge of criticism of Pearlstine, with many journalists claiming he had betrayed the sacred tenets of the profession to appease his corporate masters. Predictably, Pearlstine, who left Time Inc. in 2005, has written a book chiefly concerned with rebutting those attacks. In this attempt he is only partially successful.
Pearlstine’s professional roots are grounded as much in law as journalism. In fact, in Off the Record he says he was “born to be a lawyer.” His father was a partner in a twenty-lawyer shop near Philadelphia that employed six members of his extended family. Pearlstine fils worked there in his youth before attending Haverford College in 1960, where he gravitated toward the campus newspaper and spent summers working for papers in Pennsylvania, including The Philadelphia Inquirer. After graduation Pearlstine was accepted to both Columbia University’s journalism program and the University of Pennsylvania’s law school. Bowing to his family’s wishes, he chose law school, but after graduating he reversed course and went to work for The New York Times as a copy boy. From that modest toehold Pearlstine went on to The Wall Street Journal, where he would remain for most of the next twenty-four years, eventually becoming executive editor. Not long after leaving the Journal in 1992, Pearlstine was offered the job as editor-in-chief of Time Inc. by Gerald Levin, the CEO of Time Warner.
Pearlstine’s résumé is relevant because, as he readily acknowledges, his ascent was fueled in part by his ability to cultivate powerful allies. Pearlstine notes that as a reporter he formed friendships with many of the people he covered, and that his close association with Peter Kann, Dow Jones’s longtime CEO, “led to all my success” at the Journal. The job at Time Inc. came about in part because he and Levin both served on the board of Haverford College. Of course, many high-fliers are gifted networkers, and Pearlstine’s record reflects no discredit upon him. But it does indicate that his instincts are those of a corporate striver. Suspicion of power is second nature to many journalists, but apparently not to Pearlstine. He seems comfortable serving as a bright node on the power grid.
Pearlstine’s outlook becomes apparent when he contrasts his response to the Plame investigation with that of Arthur Sulzberger: “I worried that Sulzberger, consciously or unconsciously, saw strident, uncompromising defiance of the courts as a way to redeem his and his paper’s reputations, regaining the glory days of the Pentagon Papers with Abrams.”
Nor does Pearlstine have kind words for his illustrious legal counsel. “From the transcript, Abrams’s argument before the court of appeals seemed unfocused. Fairly or not, I was worried that he was spread thin—distracted by his other cases and his desire to publicize his autobiography.”
Through a spokeswoman, Sulzberger declined to respond directly to Pearlstine’s criticisms, but in an e-mail Floyd Abrams said that the image of him and the Times “rushing into an unneeded battle carrying a tattered First Amendment flag rather than seeking a practical resolution of the matter is preposterous.” Abrams also suggests that Pearlstine is trying to deflect attention from his own actions: “He is, after all, the first high-ranking media executive to turn over to a federal prosecutor confidential e-mails disclosing the identity of a confidential source.”
Surrounded, as he saw it, by First Amendment zealots seeking to burnish their reputations, Pearlstine sought out less uncompromising voices. He turned first to Paul Cappuccio, Time Warner’s general counsel, a former law clerk to Justices Antonin Scalia and Anthony M. Kennedy. Cappuccio recommended replacing Abrams with Ted Olson, a Reagan administration veteran and former solicitor general for George W. Bush. Pearlstine immediately approved of Olson’s “pragmatic approach” to the Plame case, but still didn’t have much hope that the Supreme Court would reverse the contempt holdings.
His pessimism proved well-founded. In June 2005, the Court declined to hear the Plame case, allowing the lower court rulings to stand. By that time, Pearlstine had already decided to surrender Cooper’s notes to prosecutors, a decision he based on two key determinations. First, Pearlstine believed the facts showed that Cooper had never treated his source on the Plame leak, White House adviser Karl Rove, as a truly secret source. Cooper named Rove in e-mails to his editors within Time, and Rove’s identity, according to Pearlstine, had become widely known within the magazine’s Washington bureau. Pearlstine thought that little about the relationship between Cooper and Rove, or the information they traded, suggested that Rove should be treated as a “confidential” source—i.e. one who must be protected at all costs. Rather, Rove was, in Pearlstine’s estimation, an “anonymous” source, one whose name should not appear in print but could be disclosed pursuant to a subpoena.
Second, unlike The New York Times Company, Time Inc. had been charged with civil contempt of court. The Supreme Court’s refusal to hear their case effectively ended the companies’ legal appeals, and Pearlstine worried that if Time Inc. continued to defy the courts it risked being held in criminal contempt, a far more onerous charge. In recounting his analysis of the risk, Pearlstine once again focuses on his corporate responsibilities, noting that his lawyers warned that “criminal contempt proceedings against Time Inc. could force [its parent] Time Warner to disclose the proceedings to shareholders, and that the corporation’s board might ask why Time Inc.’s management was not complying with the court’s orders.” Pearlstine concluded that “no corporate officer of a public company could defy a finding of criminal contempt without gaining a formal resolution approving that defiance from the company’s board of directors.”
Needless to say, no one envisioned the Time Warner board approving such a resolution, in part because it might expose individual directors to liability from shareholder lawsuits. Pearlstine consulted Ira Millstein, one of the leading corporate lawyers in America, who told him to “suppose a division of General Electric decided to continue polluting the Hudson after being held in criminal contempt. Can you imagine the GE board approving that decision?”
Pearlstine concedes that the contempt issue was largely hypothetical—he had already decided to turn over Cooper’s notes—but it’s worth noting that he doesn’t bat an eye when comparing the protection of confidential government sources with the dumping of toxic river sludge. To a corporation facing a court order, there is really no difference.
But Pearlstine also formulates the question this way: “How, I asked, could we, as journalists, criticize others who ignored the courts if we did so ourselves?” Again, he reaches out to his network of legal advisers, and they provide cover—“If presidents cannot ignore the Supreme Court, how can you?” one tells him.
How, indeed? In the end, Pearlstine’s more pragmatic approach was probably appropriate in the Plame case, and perhaps it should have been pursued at an earlier juncture. By pushing a test case through the federal court system in which the underlying facts offered little chance for success, Time Inc. and the Times Company generated legal precedents that have damaged the institution of journalism. Still, it is depressing to see Pearlstine, one of the most prominent figures in journalism, display so little kinship with the profession. As his book makes clear, Pearlstine is far more simpatico with corporate lawyers and practical business executives than with journalists, who are, after all, often impractical and vexing gadflies. Pearlstine, it appears, is a company man with little instinct for how powerful institutions can and do align to control the press precisely because it interferes with their powers and perquisites.
Near the conclusion of his book Pearlstine writes that “there is an inevitable tension between journalism and the law,” but says that by the end of the Plame case, “the lawyer in me had made me a better reporter and editor.” But had it? The evidence in the book suggests he certainly became a better lawyer, or at least a more knowledgeable one. But the very best lawyers, like the best journalists, know that while the “rule of law” is necessary, it is often not sufficient. That’s why God created equity, fairness beyond the law.
Pearlstine may now be interested in equity of a different sort. At the end of 2005, he joined the Carlyle Group, a private equity firm that specializes in acquiring corporate properties. High on the firm’s wish list is reportedly none other than Time Inc. and its influential portfolio of magazines. Meet the new boss, same as the old boss.