For Time Reporter, Decision to Testify Came After Frenzied Last-Minute Calls
By ADAM LIPTAK
This article was reported by David Johnston, Jacques Steinberg and Adam Liptak and was written by Mr. Liptak.
WASHINGTON, July 10 - Matthew Cooper, a reporter for Time magazine, stood before a federal judge on Wednesday, facing up to four months in jail for refusing to testify about a confidential source. But he told the judge that he had just received a surprising communication from his source that would allow him to testify before a grand jury investigating the disclosure of the identity of a covert C.I.A. operative.
"A short time ago," Mr. Cooper said, "in somewhat dramatic fashion, I received an express personal release from my source."
But the facts appear more complicated than they seemed in court. Mr. Cooper, it turns out, never spoke to his confidential source that day, said Robert D. Luskin, a lawyer for the source, who is now known to be Karl Rove, the senior White House political adviser.
The development was actually the product of a frenzied series of phone calls initiated that morning by a lawyer for Mr. Cooper and involving Mr. Luskin and the special prosecutor in the case, Patrick J. Fitzgerald. And the calls were the culmination of days of anxiety and introspection by a reporter who by all accounts wanted to live up to his pledge to protect his confidential source yet find a way to avoid going to jail as another reporter, Judith Miller of The New York Times, was about to do.
Mr. Cooper and his personal lawyer, Richard A. Sauber, declined to comment on the negotiations, but Mr. Sauber said that Mr. Cooper had used the word "personal" to mean specific. Representatives of Mr. Fitzgerald did not immediately respond to requests for comment.
In the days before, Mr. Cooper viewed his situation as in many ways different from Ms. Miller's.
While Ms. Miller had consistently refused to testify, Mr. Cooper had already given testimony once in the investigation, in August 2004, describing conversations he had had with I. Lewis Libby, Vice President Dick Cheney's chief of staff.
And while Ms. Miller had the support of her employer, Time had handed over documents that identified Mr. Rove as one of Mr. Cooper's sources, after the United States Supreme Court refused to hear appeals from the reporters and the magazine last month. "The question that was on his mind," said Steven Waldman, a college classmate and former national editor at U.S. News and World Report, "and this is my words, is: do you go to jail to protect the confidentiality of a source whose name has been revealed, and not by you but by someone else?"
Mr. Waldman, editor in chief of Beliefnet, a religion and spirituality Web site, exchanged several e-mail messages with his friend in the days leading to Mr. Cooper's decision to end his resistance.
"I remember saying to him," Mr. Waldman continued, " 'Look, there are two principles you're trying to balance. One is the confidentiality of sources. The other is an obligation to your family. They're both moral principles. It's totally appropriate to view that as a balance.' "
Mr. Cooper was resistant to that notion, Mr. Waldman said.
Later, Mr. Waldman asked whether Time's disclosures and a blanket waiver form his source had signed were enough to allow him to testify. In an e-mail message on Tuesday night, Mr. Cooper said he believed the forms could have been coerced and thus worthless.
The only thing that would do, Mr. Cooper wrote, was a "certain, unambiguous waiver" from his source.
Around 7:30 on Wednesday morning, Mr. Cooper had said goodbye to his son, resigned to his fate. His lawyer, Mr. Sauber, called to alert him to a statement from Mr. Luskin in The Wall Street Journal.
"If Matt Cooper is going to jail to protect a source," Mr. Luskin told The Journal, "it's not Karl he's protecting."
That provided an opening, Mr. Cooper said. "I was not looking for a waiver," he said, "but on Wednesday morning my lawyer called and said, 'Look at The Wall Street Journal. I think we should take a shot.' And I said, 'Yes, it's an invitation.' "
In court shortly after 2, he told Judge Thomas F. Hogan of the Federal District Court in Washington that he had received "an express personal release from my source."
That statement surprised Mr. Luskin, Mr. Rove's lawyer. Mr. Luskin said he had only reaffirmed the blanket waiver, in response to a request from Mr. Fitzgerald.
"Karl was not afraid of what Cooper is going to say and is clearly trying to be fully candid with the prosecutor," Mr. Luskin said.
A report on Newsweek's Web site on Sunday, that the magazine said was based on a document Time produced to the special prosecutor, added other elements to the puzzle. While Mr. Rove did identify the operative in a conversation with Mr. Cooper, Mr. Rove did not use her name - Valerie Plame, as she has been called in news accounts, or Valerie Wilson, as she prefers - or refer to her covert status, Newsweek said. Lawyers involved in the negotiations did not dispute the accuracy of the document Newsweek cited.
The information may bear on whether Mr. Rove violated the 1982 law forbidding the knowing identification of covert agents, the basis of Mr. Fitzgerald's grand jury investigation.
"A fair reading of the e-mail as well as the context in which the conversation took place makes it clear that the information conveyed was not part of an organized effort to disclose Plame's identity," Mr. Luskin said.
Mr. Cooper was never shy about telling friends that he desperately wanted to avoid jail, for his own sake and because his absence would be so confusing to his son. But they say he was resolute in the last days and hours, though hoping for a satisfactory waiver from his source.
A look at the last time Mr. Cooper testified in the investigation suggests that how to determine whether a source's waiver is authentic can be a judgment call.
Mr. Cooper's statements on Wednesday echoed his rationale for testifying last summer. "Mr. Libby," a statement issued by the magazine at the time said, "gave a personal waiver of confidentiality for Mr. Cooper to testify."
In an interview Friday, Mr. Libby's lawyer, Joseph A. Tate, disputed that.
"Mr. Libby signed a form," Mr. Tate said. "He gave it back to the F.B.I. End of story. There was no other assurance."
At most, Mr. Tate said in a separate interview last year, he had answered entreaties by lawyers for Mr. Cooper and other reporters by repeating what was in the waivers.
"I told them they had nothing to hide and could rely upon the waiver," Mr. Tate said last year.
Mr. Cooper was one of four reporters who testified in the investigation last summer. All of them said they were satisfied that Mr. Libby had given them earnest and uncoerced permission to talk.
"I personally called Libby about a waiver," Mr. Cooper said, "and he said that if it was O.K. with his lawyer it was O.K. with him."
But the other three reporters - Glenn Kessler and Walter Pincus of The Washington Post and Tim Russert of NBC - all said afterward that they had not discussed Ms. Wilson with Mr. Libby. Mr. Cooper was more cryptic. According to a statement from Time, the earlier testimony focused "entirely on conversations Mr. Cooper had with Mr. Libby."
Ms. Miller has been jailed for refusing to cooperate with a grand jury subpoena directing her to testify about "a specified executive branch official" whose identity is known to the special prosecutor in the case, according to court papers. But Ms. Miller refuses to rely on the waiver the source signed or the sort of assurances that have satisfied other reporters.
After testifying about Mr. Libby, Mr. Cooper was surprised to receive a second subpoena, in September of last year. That subpoena was focused, it now appears, on a single conversation with Mr. Rove on July 11, 2003.
Mr. Cooper was not an obvious vehicle for a sensitive leak. He had become one of the magazine's White House correspondents only the month before the conversation and is married to a prominent Democratic strategist, Mandy Grunwald.
The conversation took place a few days before Ms. Wilson's identity became public in the form of her maiden name, Valerie Plame. Robert Novak first disclosed it in a syndicated column published on July 14, 2003, attributing the information to "two senior administration officials." Mr. Novak has refused to say whether he cooperated with Mr. Fitzgerald's investigation.
Three days later, Mr. Cooper and two other reporters wrote that "some administration officials have noted to Time in interviews" that "Valerie Plame is a C.I.A. official."
Ms. Wilson's husband, Joseph C. Wilson IV, a former diplomat, had written an opinion article for The New York Times critical of the Bush administration based on a trip he had taken for the Central Intelligence Agency to Africa. The disclosure of Ms. Wilson's identity was, the Time article said, either retaliation for the article or an effort to undermine its conclusions, by suggesting that his trip was his wife's idea.
The widely divergent outcomes of Mr. Cooper's case and Ms. Miller's case reflected an evolving split in their legal strategies. At first the two reporters shared a legal team, led by Floyd Abrams, a noted First Amendment lawyer.
But after a federal appeals court refused to block Mr. Fitzgerald's subpoenas, Time and Mr. Cooper replaced Mr. Abrams with a team led by Theodore B. Olson, a former United States solicitor general in the Bush administration who is now with Gibson Dunn & Crutcher.
In an interview on Friday, Norman Pearlstine, the editor in chief of Time Inc., which is owned by Time Warner, said he hired new lawyers to bring a fresh perspective and complementary talents, not to seek a deal.
George Freeman, an assistant general counsel of The New York Times Company, said the organizations' lawyers worked well together in the months before the Supreme Court's refusal of their appeals.
Unlike Time, however, The New York Times was not held in contempt.
When Mr. Pearlstine told Mr. Cooper that Time was turning over his documents, Mr. Cooper did not make a scene or threaten to quit.
"I don't think Matt's a screamer," Mr. Pearlstine said. "He was pretty resolute. He thought we should resist this."
Even in the final hours, Mr. Pearlstine said: "I did not know whether Matt was going to testify or not. No matter what he did our comment was going to be that we respect him as a journalist and we respect his decision."
David Johnston and Adam Liptak reported from Washington for this article, and Jacques Steinberg from New York.
This article was reported by David Johnston, Jacques Steinberg and Adam Liptak and was written by Mr. Liptak.
WASHINGTON, July 10 - Matthew Cooper, a reporter for Time magazine, stood before a federal judge on Wednesday, facing up to four months in jail for refusing to testify about a confidential source. But he told the judge that he had just received a surprising communication from his source that would allow him to testify before a grand jury investigating the disclosure of the identity of a covert C.I.A. operative.
"A short time ago," Mr. Cooper said, "in somewhat dramatic fashion, I received an express personal release from my source."
But the facts appear more complicated than they seemed in court. Mr. Cooper, it turns out, never spoke to his confidential source that day, said Robert D. Luskin, a lawyer for the source, who is now known to be Karl Rove, the senior White House political adviser.
The development was actually the product of a frenzied series of phone calls initiated that morning by a lawyer for Mr. Cooper and involving Mr. Luskin and the special prosecutor in the case, Patrick J. Fitzgerald. And the calls were the culmination of days of anxiety and introspection by a reporter who by all accounts wanted to live up to his pledge to protect his confidential source yet find a way to avoid going to jail as another reporter, Judith Miller of The New York Times, was about to do.
Mr. Cooper and his personal lawyer, Richard A. Sauber, declined to comment on the negotiations, but Mr. Sauber said that Mr. Cooper had used the word "personal" to mean specific. Representatives of Mr. Fitzgerald did not immediately respond to requests for comment.
In the days before, Mr. Cooper viewed his situation as in many ways different from Ms. Miller's.
While Ms. Miller had consistently refused to testify, Mr. Cooper had already given testimony once in the investigation, in August 2004, describing conversations he had had with I. Lewis Libby, Vice President Dick Cheney's chief of staff.
And while Ms. Miller had the support of her employer, Time had handed over documents that identified Mr. Rove as one of Mr. Cooper's sources, after the United States Supreme Court refused to hear appeals from the reporters and the magazine last month. "The question that was on his mind," said Steven Waldman, a college classmate and former national editor at U.S. News and World Report, "and this is my words, is: do you go to jail to protect the confidentiality of a source whose name has been revealed, and not by you but by someone else?"
Mr. Waldman, editor in chief of Beliefnet, a religion and spirituality Web site, exchanged several e-mail messages with his friend in the days leading to Mr. Cooper's decision to end his resistance.
"I remember saying to him," Mr. Waldman continued, " 'Look, there are two principles you're trying to balance. One is the confidentiality of sources. The other is an obligation to your family. They're both moral principles. It's totally appropriate to view that as a balance.' "
Mr. Cooper was resistant to that notion, Mr. Waldman said.
Later, Mr. Waldman asked whether Time's disclosures and a blanket waiver form his source had signed were enough to allow him to testify. In an e-mail message on Tuesday night, Mr. Cooper said he believed the forms could have been coerced and thus worthless.
The only thing that would do, Mr. Cooper wrote, was a "certain, unambiguous waiver" from his source.
Around 7:30 on Wednesday morning, Mr. Cooper had said goodbye to his son, resigned to his fate. His lawyer, Mr. Sauber, called to alert him to a statement from Mr. Luskin in The Wall Street Journal.
"If Matt Cooper is going to jail to protect a source," Mr. Luskin told The Journal, "it's not Karl he's protecting."
That provided an opening, Mr. Cooper said. "I was not looking for a waiver," he said, "but on Wednesday morning my lawyer called and said, 'Look at The Wall Street Journal. I think we should take a shot.' And I said, 'Yes, it's an invitation.' "
In court shortly after 2, he told Judge Thomas F. Hogan of the Federal District Court in Washington that he had received "an express personal release from my source."
That statement surprised Mr. Luskin, Mr. Rove's lawyer. Mr. Luskin said he had only reaffirmed the blanket waiver, in response to a request from Mr. Fitzgerald.
"Karl was not afraid of what Cooper is going to say and is clearly trying to be fully candid with the prosecutor," Mr. Luskin said.
A report on Newsweek's Web site on Sunday, that the magazine said was based on a document Time produced to the special prosecutor, added other elements to the puzzle. While Mr. Rove did identify the operative in a conversation with Mr. Cooper, Mr. Rove did not use her name - Valerie Plame, as she has been called in news accounts, or Valerie Wilson, as she prefers - or refer to her covert status, Newsweek said. Lawyers involved in the negotiations did not dispute the accuracy of the document Newsweek cited.
The information may bear on whether Mr. Rove violated the 1982 law forbidding the knowing identification of covert agents, the basis of Mr. Fitzgerald's grand jury investigation.
"A fair reading of the e-mail as well as the context in which the conversation took place makes it clear that the information conveyed was not part of an organized effort to disclose Plame's identity," Mr. Luskin said.
Mr. Cooper was never shy about telling friends that he desperately wanted to avoid jail, for his own sake and because his absence would be so confusing to his son. But they say he was resolute in the last days and hours, though hoping for a satisfactory waiver from his source.
A look at the last time Mr. Cooper testified in the investigation suggests that how to determine whether a source's waiver is authentic can be a judgment call.
Mr. Cooper's statements on Wednesday echoed his rationale for testifying last summer. "Mr. Libby," a statement issued by the magazine at the time said, "gave a personal waiver of confidentiality for Mr. Cooper to testify."
In an interview Friday, Mr. Libby's lawyer, Joseph A. Tate, disputed that.
"Mr. Libby signed a form," Mr. Tate said. "He gave it back to the F.B.I. End of story. There was no other assurance."
At most, Mr. Tate said in a separate interview last year, he had answered entreaties by lawyers for Mr. Cooper and other reporters by repeating what was in the waivers.
"I told them they had nothing to hide and could rely upon the waiver," Mr. Tate said last year.
Mr. Cooper was one of four reporters who testified in the investigation last summer. All of them said they were satisfied that Mr. Libby had given them earnest and uncoerced permission to talk.
"I personally called Libby about a waiver," Mr. Cooper said, "and he said that if it was O.K. with his lawyer it was O.K. with him."
But the other three reporters - Glenn Kessler and Walter Pincus of The Washington Post and Tim Russert of NBC - all said afterward that they had not discussed Ms. Wilson with Mr. Libby. Mr. Cooper was more cryptic. According to a statement from Time, the earlier testimony focused "entirely on conversations Mr. Cooper had with Mr. Libby."
Ms. Miller has been jailed for refusing to cooperate with a grand jury subpoena directing her to testify about "a specified executive branch official" whose identity is known to the special prosecutor in the case, according to court papers. But Ms. Miller refuses to rely on the waiver the source signed or the sort of assurances that have satisfied other reporters.
After testifying about Mr. Libby, Mr. Cooper was surprised to receive a second subpoena, in September of last year. That subpoena was focused, it now appears, on a single conversation with Mr. Rove on July 11, 2003.
Mr. Cooper was not an obvious vehicle for a sensitive leak. He had become one of the magazine's White House correspondents only the month before the conversation and is married to a prominent Democratic strategist, Mandy Grunwald.
The conversation took place a few days before Ms. Wilson's identity became public in the form of her maiden name, Valerie Plame. Robert Novak first disclosed it in a syndicated column published on July 14, 2003, attributing the information to "two senior administration officials." Mr. Novak has refused to say whether he cooperated with Mr. Fitzgerald's investigation.
Three days later, Mr. Cooper and two other reporters wrote that "some administration officials have noted to Time in interviews" that "Valerie Plame is a C.I.A. official."
Ms. Wilson's husband, Joseph C. Wilson IV, a former diplomat, had written an opinion article for The New York Times critical of the Bush administration based on a trip he had taken for the Central Intelligence Agency to Africa. The disclosure of Ms. Wilson's identity was, the Time article said, either retaliation for the article or an effort to undermine its conclusions, by suggesting that his trip was his wife's idea.
The widely divergent outcomes of Mr. Cooper's case and Ms. Miller's case reflected an evolving split in their legal strategies. At first the two reporters shared a legal team, led by Floyd Abrams, a noted First Amendment lawyer.
But after a federal appeals court refused to block Mr. Fitzgerald's subpoenas, Time and Mr. Cooper replaced Mr. Abrams with a team led by Theodore B. Olson, a former United States solicitor general in the Bush administration who is now with Gibson Dunn & Crutcher.
In an interview on Friday, Norman Pearlstine, the editor in chief of Time Inc., which is owned by Time Warner, said he hired new lawyers to bring a fresh perspective and complementary talents, not to seek a deal.
George Freeman, an assistant general counsel of The New York Times Company, said the organizations' lawyers worked well together in the months before the Supreme Court's refusal of their appeals.
Unlike Time, however, The New York Times was not held in contempt.
When Mr. Pearlstine told Mr. Cooper that Time was turning over his documents, Mr. Cooper did not make a scene or threaten to quit.
"I don't think Matt's a screamer," Mr. Pearlstine said. "He was pretty resolute. He thought we should resist this."
Even in the final hours, Mr. Pearlstine said: "I did not know whether Matt was going to testify or not. No matter what he did our comment was going to be that we respect him as a journalist and we respect his decision."
David Johnston and Adam Liptak reported from Washington for this article, and Jacques Steinberg from New York.
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