ABFFE Book of the Month: Off the Record  by Norman Pearlstine

Interview with the Author

ABFFE:  You believe Matt Cooper made a mistake in granting confidentiality to Karl Rove when he leaked Valerie Plame's identity.  What should he have done differently?

Norman Pearlstine:  As I indicate in the book, I am sympathetic to Matt since most of us haven’t given sufficient thought to how to deal with issues involving anonymity and confidentiality.  But with the benefit of hindsight, I have concluded an agreement on confidentiality is contractual in nature, and a journalist cannot unilaterally grant confidentiality to a source.  Ideally, when Rove stipulated that the conversation was on deep background, Matt should have asked specifically whether Rove was comfortable with anonymity or whether he was seeking confidential source status.  If that weren’t practical during the brief interview, Matt should have returned to Rove prior to publication of the article seeking clarification on that point.  Such follow up calls aren’t unusual.

If nothing were done prior to publication, then, upon receipt of the subpoena, Matt’s and Time’s lawyer should have contacted Rove’s attorney.  The attorney should have been informed of the subpoena and told that Rove was Matt’s source.  Our lawyer and Rove’s lawyer should have then discussed what Rove’s understanding was – anonymous or confidential.  If Rove and Matt agreed that the conversation was confidential, I think Time Inc. would typically be bound by that agreement.  Matt’s two e-mails with Rove’s name in them, of course, were inconsistent with any grant of confidentiality and undermined the process in this particular instance.  (By way of background, when Bob Woodward realized that his source, Richard Armitage, had been the first to reveal Plame’s name, he called Armitage and after discussing the situation with him, Armitage spoke to Justice Department officials about his conversation with Woodward.)

ABFFE:  You argue that the press uses confidential sources too often.  Why is that a problem?

Norman pearlstine: I argue that the press uses anonymous and confidential sources too often, especially in Washington, but also elsewhere, including Wall Street, Hollywood and the world of sports.  The heavy reliance on anonymous and confidential sources breeds distrust among readers and viewers.  Information from anonymous and confidential sources is often more difficult to verify than is information from named sources.  Moreover, it is easier for a source to hide his or her agenda when speaking without attribution.

ABFFE:  What kind of sources should be protected?

Norman pearlstine:  Publishers should be prepared to litigate to protect anonymous and confidential sources.  In the case of confidential sources, reporters should be prepared to face the possibility of incarceration, and publishers should be prepared to pay fines if that is the only way to protect the source’s confidentiality.  Reporters and their editors need to evaluate the quality of information provided by sources and the veracity of the sources themselves before granting anonymity or confidentiality. 

Anonymity might be granted if that is the only way to get information that is important for a story, although the journalist and publication should always strive for a second, on-the-record source.  I would restrict grants of confidentiality to sources who are providing important information in the public interest and who, by doing so, are putting their reputations, livelihoods or lives at risk.

ABFFE:  Are there times when the press must break the law?

norman pearlstine: The general rule is that the press is not above the law.  We do a disservice to the public and to ourselves when we break the law.  I don’t see how we can point the finger at others if we are unwilling to adhere to the “rule of law.”  There are, of course, close calls.  Since the purpose of civil contempt is to coerce and not punish, I believe that a journalist and his or her editor may choose incarceration – engaging in civil disobedience – when held in civil contempt.  Some would say that decision breaks the law, but I wouldn’t take that position.  I am not sure whether I would come to the same conclusion if the journalist is held in criminal contempt, but I can imagine circumstances where I might.

ABFFE: Do you believe the press faces a growing threat from subpoenas?

norman pearlstine:  Yes, from prosecutors as well as plaintiffs and defendants in civil litigation.  Eve Burton, General Counsel for the Hearst Corp., has said that subpoenas at Hearst Corp. Publications have spiked sharply in recent years.

ABFFE: What would a federal shield law do?

norman pearlstine:  I believe that some of our most important stories cannot be written without anonymous or confidential sources.  Ideally, a federal shield law would enable journalists to avoid testifying about the identity of anonymous and confidential sources and about the information obtained from them.  I would hope a federal shield law would extend to bloggers, but I am not optimistic that such legislation will be passed in the near future.  I believe, however, that a federal shield law need not be absolute.