Does TIME Magazine Still Protect Their Sources?

Yesterday, TIME magazine delivered a fascinating Sunday puzzle when it told us that their reporter, Viveca Novak, was cooperating with the Fitzgerald investigation into the Plame leak:

Fitzgerald has now asked a second reporter in TIME's Washington bureau, Viveca Novak, to testify under oath about conversations she had with Robert Luskin, Rove's attorney, starting in May 2004, while she was covering the Plame inquiry for TIME. Novak, who is not related to columnist Robert Novak, who originally published Plame's name, is cooperating with the investigation.

David Johnston of the NY Times has more:

The reporter, Viveca Novak, who has written about the leak investigation, has been asked to testify by the special counsel in the case, Patrick J. Fitzgerald, about her conversations with Robert D. Luskin, a lawyer for Mr. Rove, the magazine said.

...

Time disclosed the prosecutor's request in a two-paragraph article published on Sunday, reporting that Ms. Novak had been asked to discuss conversations she had with Mr. Luskin, starting in May 2004, when she was covering the investigation.

The article said Ms. Novak was cooperating with the inquiry. It is not known when she will testify; she has not been asked to appear before the grand jury but will instead give a deposition, said Ty Trippet, a Time spokesman.

On Sunday, Mr. Luskin declined to comment, but he has previously said he expects that Mr. Fitzgerald will decide not to prosecute Mr. Rove. Ms. Novak declined to comment, as did Randall Samborn, a spokesman for Mr. Fitzgerald.

...

Ms. Novak is not known to have had discussions with Mr. Rove or other White House officials about the C.I.A. officer during the summer of 2003, the time that has been the focus of Mr. Fitzgerald's inquiry.

Nevertheless, the summer and fall of 2004 was a significant time for Mr. Rove, according to lawyers in the case. It was then that Mr. Rove searched for and found an e-mail message he had written that led him to recall the July 2003 conversation with Mr. Cooper, the lawyers said.

Mr. Rove's e-mail message was sent on July 11, 2003, to Stephen J. Hadley, who was then the deputy national security adviser. The message said Mr. Rove had spoken to Mr. Cooper about issues in the leak case.

After its discovery, Mr. Rove provided the message to Mr. Fitzgerald, who had not been aware of it. Mr. Rove testified about the conversation with Mr. Cooper in a grand jury appearance in October 2004.

Even so, Mr. Fitzgerald has investigated Mr. Rove's assertions that he had forgotten the conversation with Mr. Cooper, and why he made no mention of it in his earlier testimony and in meetings with investigators, the lawyers said.

In Ms. Novak's case, the magazine's apparently swift compliance contrasted with the legal battle waged by Time and Mr. Cooper, who for months resisted a subpoena from Mr. Fitzgerald for his testimony.

Yes, the swift compliance does make quite a contrast with their previous position.  And TIME was criticized at the time for folding up, rather than making a stand for press freedom.

So, has TIME surrendered all notions of a free press, and does it now consider itself to be an arm of the Fitzgerald investigation?  For some reason, in their statement they do not even address such questions as how or whether they hope to protect the confidentiality of their source, Robert Luskin.  Now, we see him quoted by name in some of the articles that include a Novak byline, so some of what he said was on the record.  But was all of it?

In my unexpected role of TIME apologist, I will hazard this guess - suppose Special Counsel Fitzgerald is asking Ms. Novak about information she may have passed to Robert Luskin.  Specifically, suppose Ms. Novak told Mr. Luskin in May of 2004 that Matt Cooper believed he was being subpoenaed to testify about his side of a conversation with Karl Rove.

Well, then - it is far from clear why her questions to Luskin would be covered by any concept of source confidentiality.  But if Luskin had been alerted in May 2004 that Cooper had talked to Rove, why did it take so long to discover the missing email?  [Possible Luskin response - "I didn't believe her.  Did I tell Karl?  Sorry, that is privileged communication".]

It's just a guess.  Now I'll tell you something that is not a guess - TIME ought to have explained this in their statement.  Are they or are they not still attempting to protect their sources?

More links to possibly-relevant Viveca Novak articles here, and more links to follow.  And as to how or why Fitzgerald discovered this Novak-Luskin connection now, as opposed to last summer or a year ago, I have no idea.  However, it is surely an impressive coincidence that Ms. Novak had the big TIME interview with Woodward just last week.  Unless, of course, it is not a coincidence.  I have a fair-use excerpt of the TIME article here, but I don't see anything helpful like "By the way, this reporter also had a critical conversation with Robert Luskin in May of 2004".

However, the TIME article did end with this, so who knows?

During his time with the prosecutor, Woodward said, he found Fitzgerald "incredibly sensitive to what we do. He didn't infringe on my other reporting, which frankly surprised me. He said 'This is what I need, I don't need any more.'"

As a further aside - if our newly energized Special Counsel no longer respects DoJ guidelines about enlisting reporters, and if press freedom is no longer an issue, we eagerly await word that he has contacted Ms. Mitchell, again.

OTHER IDEAS:

ReddHedd at firedoglake thinks Fitagerald is nibbling on the fringes of attorney-client privilege.  [UPDATE:  She calls a partial mulligan, and has a much more plausible new idea which, troublingly, builds on my own suggestion.  Briefly, if Viveca told Luskin that Cooper talked to Rove, Rove may have been in imminent danger of discovery; this undermines (but does not eliminate!) the recantation defense.]

JeraLyn Merritt is too prudent to guess wildly, but she has helpful extracts from past TIME articles.

Swopa also wonders about press freedom, and I stole his puzzlement about the Novak-Woodward connection.

Jane Hamsher has some guesses which I like even less than mine.

And let me propose a timeline correction - Matt Cooper was originally subpoenaed in May 2004.  Eventually, that subpoena was modified to applay only to conversations with one named official, later revealed to be Lewis Libby.  He then received a second subpoena in Sept 2004 which did not name any officials.

So a theory is that, as of September 2004, Fitzgerald believed Cooper had at least one more source, but did not know who the source was.  Fitzgerald's surprise that Cooper had a second source comes from Cooper's own account [No, it doesn't.  Hmm.  Here we go.]; other details are from the appeal available at Fitzgerald's website. 

Comments

[kim]

I don't share all of AJ's dismay with Fitz. The man is subtle.
===================================================

[kim]

Still Throat.

Maybe it is Powell.
========================

[kim]

Is Woodwards source also Cooper's?

Or both Novaks'?

Whew.
======================================

[kim]

Hey, what makes you think I know the answer?

Actually, I do. It's Joe.
================================================

[kim]

Joe.

Phew.
=====

[kim]

The problem with emptywheel's analysis is that it depends on Rove recall.
================================================

[Dwilkers]

"...suppose Special Counsel Fitzgerald is asking Ms. Novak about information she may have passed to Robert Luskin. Specifically, suppose Ms. Novak told Mr. Luskin in May of 2004 that Matt Cooper believed he was being subpoenaed to testify about his side of a conversation with Karl Rove."

He could never prove it IMO. I think this would be really, REALLY pushing the envelope.

1) They volunteered the info about the e-mail. How would they prove to a jury that this was a deliberate lie in light of the fact that they voluntarily produced it, however late?

2) Novak could say she told Luskin about the Cooper thing, but how exactly would that prove that Rove knew? Answer; it wouldn't except by assumption. Novak would be testifying about her conversation with a third party. Luskin couldn't testify at all about what he told Rove. It is totally unprovable.

3) It would be a priveledge nightmare even to attempt such a prosecution. The hurdles would be so daunting I cannot see why any prosecutor would even attempt such a thing.

If what Fitz is doing is anything like what you describe he has run totally amok.

[TM]

I am with Dwilkers on this, and let me add - even if Viveca told Luskin, what is wrong with a Luskin defense of "I don't believe everything reportes tell me. I figured it was a ploy to get me talking."

Now, can Fitzgerald force Luskin to testify as to whether he passed that conversation along to Karl? I don't see how that is not privileged.

Well, I don't love this theory, but no other theory exactly grabs me, either.

And is it merely an amazing coincidence that (a) Woodward and his source emerge; (b) Viveca gets the big TIME interview with Novak; and (c) Fitzgerald wants to talk with Viveca?

Well, color me "amazed".

[cathyf]

What if there is some rumor going around that Luskin told Novak that they were hiding something in the Cooper email story? Remember, it was Luskin who found the email... Suppose Fitzgerald contacted Novak, and she said, "That's a load of crap, he told me no such thing" and Fitzgerald then asked if she was willing to testify to that under oath. And because he has had considerable *ahem* practice with these sorts of negotiations over the last year, Fitzgerald had a well-formulated neat-and-tidy description of how he would limit his questioning to what Luskin told Novak about the email incident. Novak (and her lawyers) found them reasonable, Fitzgerald has cred with reporters for honoring other limitation agreements, she is eager to testify because people are telling lies that involve her and she wants to correct them, so she agreed to testify.

So, see, it doesn't have to be so ominous...

cathy :-)

[Geek, Esq.]

This is a real head scratcher.

And this is elementary stuff compared to Abramoff.

[Geek, Esq.]

It could be that Luskin told Novak about the email/conversation with Cooper in May 2004.

That doesn't make a lot of sense, and would have been monumentally stupid. But, I would have said the same about LIBBY's behavior as well.

[Truzenzuzex]

A couple of observations:

1. There is no way that Luskin disclosed atty/client privileged information to a reporter. If he discussed a May conversation with Cooper knowing that Rove didn't mention it to the grand jury, he should be disbarred. My assumption is that Cooper never came up in his conversation with Novak, because evidently Luskin shouldn't have known about it.

2. What would Luskin and Novak have to talk about? Perhaps only the weather, but it seems like more (From a CNN transcript Oct 17th):

M. O'BRIEN: What's Karl Rove's circle of wagons plan? Or is it get on a wagon and get out of the White House?

ALLEN: Well, Miles, people in the White House hope that this is an academic exercise, that this is a plan that's never going to have to be used. A number of Republicans think that Patrick Fitzgerald has an axe to grind here, is trying to justify his existence, is trying to make something out of nothing. But if there are charges, Vivica Novak and I, my colleague at "TIME," have found that both Karl Rove and Scooter Libby do plan to leave the White House in some fashion, is the way it's been put to me. There's a plausibility of unpaid leave of absence, more likely is they would simply resign.

So Rove and Libby or somebody close to them (perhaps Luskin and Libby's lawyer) may have been discussing the case with Novak, at least with regard to what might happen if Rove and/or Libby were indicted.

What else? Well, this was a wee bit interesting:

ALLEN: And the idea of an unpaid leave of absence is that these people are -- would be innocent until proven guilty. And, in fact, we know that Karl Rove plans to use this time, if he were to leave, to aggressively fight the chargers.

He continues to have the position that White House officials were told this information by journalists, not the other way around, and that he has an ironclad alibi in the fact that the columnist Robert Novak told him about the CIA operative, as opposed to the other way around. But some of the lawyers who are involved in the case have begun to fear the worst.

They do fear that based on the questions that the prosecutor, Patrick Fitzgerald, has been asking, is that he is very interested in the misuse of classified information, which is a much less rigorous statute than we'd originally been looking at. For years and years, I guess now it is, Miles, you and I have been talking about a law that would have a very high standard in which there would be a lot of tests that had to be met before revealing someone's identity could be a crime. But mishandling classified information, much lower standard.

Hmm. We have all talked endlessly about Rove and who gave what to whom. Also the whole classified information thing. Nothing really new here - or is there?

Now, if we think back to Martha Stewart, she was accused of misleading investors through press statements. Is Fitzgerald thinking of indicting Rove for using the press to obstruct his investigation? Novel, no doubt, but given the Stewart case, can we totally rule it out?

Or perhaps, 18 USC 793 charges are not as stiff as we think...

[owl]

I keep thinking back to what I have watched with Cooper. He and Isikoff have really been going after Rove. Attack dogs and lucky coincidence that MSNBC hosts Newsweek on their site. I watched both on PBS, after the Libby indict, and Cooper was giving Libby a pass and attacking Rove. Ditto for Isikoff. Now TIME's Novak interviews Woodward? The same Novak talking to Fitz about Rove?

Reminds me again of the Storytellers writing the Story and then using the Storyteller Privilege of only telling what they please, when they please, about whoever they please to tell on.... Storyteller Witnesses.

So thinking about TIME and Cooper, Fitz's July 5th opposing Cooper says "Cooper argues that there is no prospect that he will testify because he is ethically bound to honor a promise..." This has to be one of the funniest lines ever in relation to TIME and Cooper.

[Geek, Esq.]

He continues to have the position that White House officials were told this information by journalists, not the other way around, and that he has an ironclad alibi in the fact that the columnist Robert Novak told him about the CIA operative, as opposed to the other way around.

This could be interesting. Perhaps they're looking at whether Rove's conversion from "I'm absolutely positive that I first heard this from Novakula" to "I'm absolutely positive I heard this from LIBBY" was in fact not an example of him remembering the email, but rather getting caught in a lie and trying to wiggle out.

[owl]

I still think Fitz is after conspiracy. He bought the MSM/DNC story, otherwise he could not have said what he said at that news conference.

Fitz should take up the hobby of news junkie, then he would throw all this crap out the window. Pronto.

[PusBoy]

To answer the question posed by your headline, no.

Time put up a fight to protect Cooper's source, and they lost. Fighting this time could have been seen as a futile gesture.

All the other stuff about why this is happening probably boils down to Fitzgerald being thorough. If he's going to charge Rove or not charge Rove, then he's going to make sure that he explored every path, so he doesn't take heat from the side that gets pissed off.

Isn't there an old adage about serving two masters? Makes life tough.

[Marcel]

Maybe Luskin did not request confidentiality in his discussion with V. Novak.

[TM]

Typepad seems to be down again so I can't update my post, but ReddHedd at firedoglake has an interesting idea: *IF* Viveca told Luskin that Cooper's other source was Rove, then it may be harder for Rove to argue that he corrected his original testimony in a timely fashion. One requirement for a correction is that discovery of the truth by other means not be imminent.

As to why this came out now, still a puzzle.

[Patrick R. Sullivan]

' Now, if we think back to Martha Stewart, she was accused of misleading investors through press statements.'

And the judge tossed the charge, after the prosecution presented its case, as not a crime. Which is one of the grounds of her appeal; that her jury was misled by that frivolous--in the first place--presentation that should have never been introduced.

Just another thing for Fitz to think about, it Martha wins her appeal.

[TP]

Wouldn't Viveca have to honor any confidentiality with Luskin unless Luskin gave her a waiver. It seems to me Luskin is not working under WH rules and is in control of whether or not he gives Viveca a waiver. If he didn't think the evidence was exculpatory, why would he give a waiver? Viveca testifying without a waiver from Luskin would be a huge leap for Time.

[Geek, Esq.]

Wouldn't Viveca have to honor any confidentiality with Luskin unless Luskin gave her a waiver. It seems to me Luskin is not working under WH rules and is in control of whether or not he gives Viveca a waiver. If he didn't think the evidence was exculpatory, why would he give a waiver? Viveca testifying without a waiver from Luskin would be a huge leap for Time.

Luskin is an agent and mouthpiece for Rove. Unless Luskin is in personal legal jeopardy, Rove's waiver would cover anything his attorney said on his behalf.

[Jim E.]

Half-baked/Rawstory has a new piece up. Not related to Viveca, but it is related to Rove.

[cathyf]

...Viveca told Luskin that Cooper's other source was Rove...

Remember the story is that Luskin is the one who actually found Rove's email, that Rove still doesn't remember the conversation with Cooper, and that Rove's testimony was that the contents of the email is the only evidence he can offer since he doesn't remember.

So we know that there was the last-minute Fitzgerald-Luskin pow-wow. Maybe Fitzgerald is tracking down the details of the Rove-Cooper story, because the supporting details make it more plausible that it is true. Suppose that Rove/Luskin are claiming that the first time Rove found out that Cooper was protecting a conversation he had with Rove is that Viveca Novak told them. And that this was what caused them to go searching Rove's hard drive for any files that dealt with "Cooper" around the right dates, and they turned up the email. Then perhaps Fitzgerald is simply confirming the details -- yes, she told Luskin, yes, it was these dates, yes, he seemed surprised. Why would Viveca want to obstruct that, especially if Luskin is the one who pointed Fitzgerald to her as someone who could corroborate the conversation?

cathy :-)

[danking]

Don't know how these reporters will be able to continue giving "limited" testimony when Libby's attorney calls them to the stand?

Do you think they'll ask Woodward what he meant by this not being a real crime? or what he meant by his "gossip" comment?

Was the gossip that Wilson's wife sent him on the trip?

[r flanagan]

At least in appearance , Fitz seems to
be mounting a double barrelled assault on the traditional -if not necessarily constitutional- confidentiality "rights" of both the press and the defense bar.

If so , I'm forced to agree with the Just One Minute consensus that he's dead wrong.
And I'm embarrassed by the fairly supportive
position that e.g. Firedoglake has taken .

This looks like such a double whammy
that I hope we are misreading the tea leaves.
Say it ain't so , Fitz.

[John Gillnitz]

Was Luskin even speaking to Novak under the condition of anonymity? There is no need to protect confidentiality if none was ever requested. It seems like anything juicy Luskin could have divulge could easily be traced back to him.

[boris]

Well I've always been open to the possiblity that Fitz was a shark jumper with BDS. The syndrome is just too prevalent for it to be anything other than a cultural phenomenon. Blanco's BDS clearly put lives at risk and may have cost more than a few. The saying goes "when you hear hoofbeats, think horses, not zebras" and unfortunately these days BDS is more horse than zebra.

[Florence Schmieg]

Cathyf: Your theory makes sense.

[Cecil Turner]

If so , I'm forced to agree with the Just One Minute consensus that he's dead wrong.

Well, I disagree on both counts (and am a big fan of quoting Wilford Brimley: "The First Amendment doesn't say that, counselor . . . the privilege doesn't exist"), but the intellectual honesty that leads to a conclusion you obviously find distasteful is quite impressive. My complaint with Fitz's latest move is that it moves us no closer to the basic issue ("who outed Plame and why?"), and is still related to whether sand was flung in the umpire's eyes. The second grand jury also suggests he's shopping around for a favorable finding. If either is true, he ought to be fired.

Unless Luskin is in personal legal jeopardy, Rove's waiver would cover anything his attorney said on his behalf.

Unless I'm missing something significant about the whole concept of the nonexistent privilege, it has little or nothing to do with legal jeopardy. Further, it's unclear whether it would be Novak's or Luskin's to waive. And a more cynical interpretation of the sudden disinclination to apply the privilege to Administration sources might be that it is remarkably congruent with reporters' political predilections.

[TP]

Geek. Is Luskin speaking on Rove's behalf when he comments on the case? How is that determined?

[Jeff]

And a more cynical interpretation of the sudden disinclination to apply the privilege to Administration sources might be that it is remarkably congruent with reporters' political predilections.

It has always seemed to me that a great piece of evidence speaking against that cynical interpretation is the fact that Cooper and TIME refused to cave in the height (or depths) of election season.

[Truzenzuzex]

Cathyf:

Then perhaps Fitzgerald is simply confirming the details -- yes, she told Luskin, yes, it was these dates, yes, he seemed surprised. Why would Viveca want to obstruct that, especially if Luskin is the one who pointed Fitzgerald to her as someone who could corroborate the conversation?

I like it. It makes sense. This could just be Fitzgerald covering all his bases, making sure that Novak and Luskin's story jive.

It's interesting she wasn't asked to testify in front of a grand jury. For some reason, the fact that she was deposed makes me think that Fitzgerald needed her testimony more to verify Rove's version of events than to prove Rove was dishonest.

Tying up loose ends...

[MayBee]

yes, I like Cathyf's theory as well.

[Cecil Turner]

It has always seemed to me that a great piece of evidence speaking against that cynical interpretation is the fact that Cooper and TIME refused to cave in the height (or depths) of election season.

It's hard to see how they could've been much more accomodating whilst pretending there was any privilege at all. Here was the state of "non-caving" in October, '04

Cooper told reporters yesterday that he had tried to accommodate special counsel Patrick J. Fitzgerald in agreeing to be deposed about his conversations with Libby, but that Fitzgerald "came back a few days later and asked for everything in my notebook."

[Jeff]

It's hard to see how they could've been much more accomodating whilst pretending there was any privilege at all. Here was the state of "non-caving" in October, '04

Cooper told reporters yesterday that he had tried to accommodate special counsel Patrick J. Fitzgerald in agreeing to be deposed about his conversations with Libby, but that Fitzgerald "came back a few days later and asked for everything in my notebook."

Um, how about if he had given him everything in his notebook and/or immediately testified about his conversations with Rove which showed Rove to have lied with regard to his involvement in the leaking of classified information, and perhaps to have lied to the President of the United States (and if not, so much the worse!). That would have been significantly more accommodating, and I have no doubt that many many right wingers would have called foul loudly and long on Cooper and TIME for intervening in the election. Or would you claim that the response from the right would have been exactly the same as it was?

[kim]

Come, come, come. Reporters and the MSM don't want the truth of this to come out ever. Not now, not election '04, not ever. If they wanted the truth out they could have started yesterday.
=============================================

[topsecretk9]

Just curious but is it 100% inconceivable that Fitz is not acting on a bit of info given to him BY Luskin? That Luskin turned V. Novak in to Fitz? Something perhaps she said to Luskin (pertaining to Cooper) that the Woodward fiasco made spring into Luskins mind?

Just a thought.

[clarice]

ts, I think you may be right. BTW MacRanger keeps hinting that Matt Cooper has disappeared. Anyone know anything about that?

Is it possible that V. Novak told Luskin something about Cooper?That Luskin passed this on to Fitz and he is checking that out?

[r flanagan]

On Keith Olberman's program Vanderhei said that his story in tomorrow's WAPO will say that Fitz's deposing V Novak may well be a good sign for Rove. Wouldn't say any more for fear of blunting the impact.

[Jeff]

Fascinating story from the WaPo. It appears that Novak is testifying more or less at Luskin's behest, or in any case

a person familiar with the matter said Luskin cited his conversations with Novak in persuading Fitzgerald not to indict Rove in late October, when the prosecutor brought perjury and obstruction-of-justice charges against Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby.

"This is what caused [Fitzgerald] to hold off on charging" Rove, the source said.

(I take the source for this to be pretty obviously Luskin himself, just as I take the other anonymous source who's not sure why Novak's testimony is supposed to help Rove to be Novak.)

[Terrie]

Jeff, thanks for the link.

That Washington Post article includes this nugget confirming our speculation about Woodward's source:

"Fitzgerald recently disclosed that he plans to present new evidence to a second grand jury. People close to the case said the first area Fitzgerald wants to address is Woodward's testimony and his source, who has not been publicly identified.

Woodward's source could face legal troubles because the source testified earlier in the case and apparently did not mention a conversation with Woodward about Plame, according to lawyers in the case. If the source provided inaccurate or incomplete information, Fitzgerald could seek to bring charges, they said."

[kim]

Justice delayed is justice denied. Memories fail. Attention should be paid to motive, and to deliberate lying, rather than to errata attributable to memory insufficiency.
================================================

[Cecil Turner]

Um, how about if he had given him everything in his notebook and/or immediately testified about his conversations with Rove . . . ?

Well, for one thing, Cooper's testimony wasn't proof of much, and certainly didn't help Libby or Rove. He apparently forgot about the welfare reform part of the conversation with Rove, and then spun Libby's "words to the effect of, 'Yeah, I've heard that too'" into what Fitz claimed as:

LIBBY confirmed to Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA;

Besides, the contention wasn't that they couldn't have been any more accomodating, but that they couldn't whilst pretending there was any privilege at all. Releasing e-mails that explicitly state the source spoke on condition of anonymity (i.e., "double super secret background"), without even bothering to put up a legal challenge, would essentially admit there was no such privilege. And from Time, Inc.'s viewpoint, could hardly enhance the confidence of the next source a Time reporter hoped to cajole. Claiming it's proof positive of political disinterest seems more than a bit of a stretch.

[Jeff]

Well, for one thing, Cooper's testimony wasn't proof of much, and certainly didn't help Libby or Rove. He apparently forgot about the welfare reform part of the conversation with Rove, and then spun Libby's "words to the effect of, 'Yeah, I've heard that too'" into what Fitz claimed as:

LIBBY confirmed to Cooper, without qualification, that LIBBY had heard that Wilson’s wife worked at the CIA;

This is mostly beside the point: I was talking about politically and in the real world, not legally in the case. In 2004, Cooper could have revealed that Rove lied -- lied in the real world, I'm not saying perjured himself or obstructed justice -- about his role or lack of it in the Plame matter. I'm not even saying which interpretation of Cooper's account is correct. The point is that had Cooper revealed that Rove talked to him about Plame, it would have been politically damaging. And as for Libby, Cooper had already testified at that point, so the privilege point doesn't apply to that case at least, and whatever spin you want to claim Fitzgerald put on Cooper's testimony is irrelevant to what Cooper and TIME did and did not do in 2004. Similarly, TIME and Cooper are argumentatively resourceful; they, like many others in the case, could have come up with a public rationale for caving in 2004 while still claiming the existence of some privilege.

Oh, and I'm not claiming it's proof positive of anything. That's just a strawman.

[boris]

Cooper could have revealed that Rove lied

Rove warned Cooper off Wilson in a conversation he didn't recall later.

How is that lying ???

Oh ok ... different standards for reporters and PR operatives.

[Cecil Turner]

In 2004, Cooper could have revealed that Rove lied . . .

You mean through McClellan? I suspect there'd have been a lot less poltical damage from that three way "he said/he said/he said" than you apparently believe (especially when contrasted with the then-recent SSCI report showing Wilson to be less than forthcoming). And again, immediate source betrayal would have obvious effects on Time's reputation for source protection.

Oh, and I'm not claiming it's proof positive of anything.

Fair enough. Let me restate that: I don't agree it's "a great piece of evidence."

[Jeff]

You mean through McClellan?

Yes.

And boris - We know from Fitzgerald's investigation -- which, remember, was Bush's standard -- that Rove was involved in the leaking of classified information (whether it was criminal or not is a different question without a clear answer). Rove had conveyed to us, and evidently to the President, that he was not involved in the leaking of classified information. He was. I suppose we still have to address the question of whether he knew it; maybe he just said something false, and did not lie. But then he's more incompetent than I usually give him credit for. But it's possible, I suppose.

[kim]

Standard lie.

Define Bush's standard, and involved.
==============

[TomJ]

Boris- How is that lying

In the period prior to the election, the White House led us to believe that Rove (and Libby) were not involved in leaking Plame. That was a lie.

Cooper was one of a very small number of people on the planet who knew for sure that the White House was deceiving us. He decided that protecting Rove was more important than telling his readers, pre-election, what he knew: that the White House was harboring one or more liars.

This was, at best, a questionable decision on Cooper's part. It's not the decision he would have made if he was, as some claim, part of a Big Bad Liberal Media whose top priority is to hurt Bush.

Outing Rove would have hurt Cooper with regard to future sources only to the extent that those sources were interested in counting on Cooper to cover for them while they deceived the public.

Cecil- there'd have been a lot less political damage ...

I think you're claiming that Cooper outing Rove would not have meant much to anyone. If so, then all the more reason for Cooper to say to Rove "you don't really care if I talk about this now, right?" And then Rove could have said, "sure, go right ahead, I have nothing to be ashamed of, and I'm not asking you to help me deceive the public."

Jeff- Rove had conveyed to us ... that he was not involved in the leaking of classified information.

Yes. And unless we want to descend into a Clintonesque parsing of words like "is," the way most people interpreted this was to understand that Rove was not involved in telling reporters that Plame worked for CIA.

I realize that defenders of Rove want to hang their hat on a claim that Plame wasn't classified/covert, so therefore the White House wasn't lying when it said Rove didn't leak classified information. Sorry, that doesn't wash. If that's what's true, then Rove needed to say "yes, I told reporters about Plame, but there's nothing wrong with that because it's not classified information."

Rove most definitely didn't say that, which indicates he knows he had something to hide. But that's already obvious from the sneaky way he conducted the campaign against Wilson, to begin with. Those who claim Rove did nothing wrong need to explain why he tried to hide behind a curtain.

[boris]

I suppose we still have to address the question of whether he knew it;

Exactly so. Better to assume it was a deliberate lie and "only remembering when the email turned up" was another bald faced deliberate lie. Of course you have no slack left for them after using it all up (and them some) on Fitzy, Woody, Timmy ... ad nauseum.