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Coverage of Justice Sandra Day O'Connor's Retirement; Will Cooper, Miller Go to Jail?

Aired July 3, 2005 - 11:30   ET


UNIDENTIFIED MALE: Caught by surprise. The press gears up for a Rehnquist resignation, but it's Sandra Day O'Connor who quits the Supreme Court. Are journalists again indulging in useless speculation about who President Bush will pick to replace her?

Supreme cave-in? "Time" magazine loses its final appeal in the Valerie Plame leak case and agrees to turn over reporter Matt Cooper's confidential notes, while "The New York Times" and Judith Miller fight on. Did "Time" bow to pressure in a crucial press freedom case?

And with contempt citations upheld for four more reporters in the Wen Ho Lee case, is the First Amendment under siege?


HOWARD KURTZ, HOST: Welcome to RELIABLE SOURCES, where today we turn our critical lens on the biggest legal showdown with the press since the Pentagon Papers, and a Supreme Court shakeup that took most journalists by surprise. I'm Howard Kurtz, reporting today from New York.

The media machine was all geared up this week for a high court vacancy, and everyone, it seemed, knew who it would be. But when word came Friday morning that Sandra Day O'Connor was stepping down, not Chief Justice William Rehnquist, reporters were ready with a fresh batch of speculation about her possible successor.


JOE JOHNS, CNN CORRESPONDENT: Let's talk now about some of the people who have been named as possible successors to Sandra Day O'Connor on the United States Supreme Court. At the top of the list, at least for talks' sake, has been Alberto Gonzales.

UNIDENTIFIED MALE: You also have John Roberts, a justice here in the Washington area.

UNIDENTIFIED FEMALE: How about women? As far as I know, no women Hispanics have been mentioned to take her seat so far.


KURTZ: Joining us now from Washington, CNN's special correspondent, Frank Sesno, also a professor of public policy and communication at George Mason University. Byron York, White House correspondent for "National Review." And veteran Supreme Court reporter Lyle Denniston, who is now a correspondent for

Frank Sesno, every journalist on the planet was wrong, except for "Weekly Standard" editor Bill Kristol, who predicted O'Connor. Isn't it a big embarrassment for everyone to kind of have stampeded into the notion that it was Rehnquist who was going to step down this week?

FRANK SESNO, CNN SPECIAL CORRESPONDENT: No, first, kudos to Kristol, and secondly, you know, here's the power of groupthink.

I don't know how much of an embarrassment it is. I would be reluctant to cast everybody into the deep, dark void of journalistic infamy because of something like this, but it does show that people missed a number of signals, some of which Kristol picked up on. Is it a terrible thing? No. Does it show that we were wrong on Rehnquist? You bet.

KURTZ: Lyle Denniston, Sesno is being too polite here. Yes, Rehnquist was 80, and he suffers from thyroid cancer and he still might step down, but there was a rush to judgment here, was there not?

LYLE DENNISTON, SCOTUSBLOG.COM: Well, I think there was. But among some of us, we didn't expect Rehnquist to go either, because the truly informed specialists on the Supreme Court began to believe, as early as Tuesday morning, that there was going to be no Rehnquist departure. And it was a surprise that anyone departed when the announcement was made on Friday. And that was a surprise, apparently, even to Sandra O'Connor's sons, who hadn't been told. So I think Sandra's decision was made very late in the week, maybe the day before. Bill Kristol, I think, was just lucky.

KURTZ: Well, the newsweeklies have got their covers out. "Time" goes with "The Supreme Battle." And "Newsweek," "O'Connor's Odyssey."

Byron York, now we're hearing about so-and-so is expected to be on the short list, and being mentioned as a possible successor. Isn't this the same useless speculation from the people who were wrong about Rehnquist?

BYRON YORK, NATIONAL REVIEW: Actually, I don't think it's useless at all. First of all, this is a question people have been chewing on for quite a long time. I mean, we've expected Supreme Court vacancies for two or three years now, and finally it's -- finally it's happened. And I would be very surprised, actually, if the final candidate doesn't come from the list of people who have been talked about, because we know that they are being considered by the White House. So no, I don't think it's useless speculation.

KURTZ: Well, but we don't actually know who the president is going to pick.

Frank Sesno, once Bush announces his choice, will the press act as a neutral referee in investigating the nominees' record, or once the Democrats start attacking him or her, will the press more likely kind of add to the polarization? It's going to be a very tough battle.

SESNO: I think probably the press will add to the polarization. I think this is going to be very nasty. And depending on where the nastiness comes from, that's going to play to the principle, bias in media, which isn't liberal or conservative, but negative. So where the negative news dominates, that's what's going to get the attention.

But let me say this, and as far as the useless speculation you pointed out a moment ago, none of this is useless. This actually matters. This speculation matters. Whoever goes on the Supreme Court, and especially if they change the dynamic of the Supreme Court, is going to affect people's lives from their bedrooms to their front gate. And that really matters, so go for it.

KURTZ: No one is underplaying the importance of the decision here with the Supreme Court. My point is that journalists have this irresistible desire to forecast and predict who a president is going to nominate, and often that's not -- they don't know.

SESNO: Of course they don't know. But this is a case where the press should get in it, and mix it up. And if there's speculation, as long as it's informed speculation, go for it, because people need to understand the stakes.

KURTZ: All right. Lyle Denniston, "New York Times" lead story this morning, "Conservative Groups Rally Against Justice Gonzales" -- excuse me, "Against Gonzales as Justice," referring to the attorney general. Once this gets under way, how much of the coverage will be focused on the politics and the interest groups and the televised attack ads, as opposed to the nominee's position on all of the actual issues that the high court has to deal with?

DENNISTON: Well, I think you're displaying the front page of "The New York Times," the same approach was taken by "The Washington Post" this morning and other major newspapers. Editors of major newspapers and other news organizations have already turned this story over to their political reporters, and the political community, the chattering political community, that includes journalists, by the way, are going to cover this as if it were a sporting contest, or perhaps slightly more dignified, a presidential contest, with all the focus on which interest group is going to prevail and which not.

The substance and the significant institutional and historic importance of this story I'm afraid is going to get lost in the horse race coverage.

YORK: Howard, if I can add, I think a lot of people in the press have already adopted an angle, which is, will there be a right-wing takeover of all branches of the government? On the front page of "The Washington Post" yesterday, Dan Balz, their top political reporter, said that "a Republican Party fueled by the energy and activism of its religious and social conservatives has seized control of the executive and legislative branches of government in Washington." Some would say they actually won control. "But the Supreme Court's last one remaining."

And in case you didn't get it, today "The Washington Post" has another front-page story...

KURTZ: I was going to mention that.

YORK: ... saying that: "The conservative movement has within its grasp the prize it has sought for more than 40 years, control of all levers of the federal government." So I think that's a big angle.

KURTZ: And just briefly, you think -- and you think that angle is wrong?

YORK: No, I think that that angle is no more legitimate than the angle that a number of groups that are fighting -- or that are going to be fighting on behalf of the White House candidate, actually sprang up in reaction to groups like People for the American Way and the Alliance for Justice, who have been fighting this battle for a long time.

KURTZ: All right. Well, there's plenty of artillery, obviously, on both sides.

Now, before O'Connor dropped her bombshell, the Supreme Court this week decided not to hear an appeal in the contempt case against reporters Matt Cooper and Judith Miller over the leak of the name of CIA operative Valerie Plame. "Time" magazine's Cooper and Miller of "The New York Times" could face jail within days, despite the fact that Time, Inc. editor in chief Norman Pearlstine, whose company, like CNN, is part of Time Warner, has turned over Cooper's confidential notes and e-mails in the case.


NORMAN PEARLSTINE, EDITOR IN CHIEF, TIME, INC.: I think it's a terrible case. I wish the court had taken our appeal. But given that they did not, we're not above the law. And the law was clear that I think we had no choice but to turn over the information.


KURTZ: And joining us now from Princeton, New Jersey, is Lucy Dalglish, executive director of the Reporters' Committee for Freedom of the Press.

Lucy Dalglish, a lot of journalistic criticism of this decision by Time, Inc. "Salt Lake Tribune," for one, saying: "The company now bears the stain of corporate cowardice." Do you agree?

LUCY DALGLISH, EXEC. DIRECTOR, COMMITTEE FOR FREEDOM OF THE PRESS: Corporate cowardice, I don't know if I'd go that far. But certainly this was an unexpected turn of events, and my organization is very disappointed. This -- to our knowledge, this is the first time in about 25 years that a journalism organization has gone over the wishes of a reporter and identified a source.

KURTZ: Frank Sesno, Time, Inc. wages this lofty battle full of rhetoric about the confidentiality and the sanctity of confidential sources, and now it's turned over Matt Cooper's notes, which reveal his confidential Bush administration sources. What do you make of this capitulation?

SESNO: You know, the long and the short of it is, is that Time can -- Time, Inc. can say all it wants and issue all the disclaimers it wants, but its actions are what count here, and actions are that notes, confidential notes from a reporter who didn't want his notes turned over have been turned over.

The questions that it raises are very profound ones, and they are echoing all throughout the journalistic community, and throughout communities well beyond journalism, and that is, was the decision based purely, as Pearlstine said, on the fact that in his view, Time, Inc. is not above the law, that if a president is ordered to turn over tapes, which Nixon did and did so, then news organizations need to follow the law, too, or were there other concerns here, corporate considerations, that the giant conglomerate Time Warner has so many issues before Washington, and that's what prevailed somehow in the assessment of all of this.

KURTZ: You anticipated my next question to Lyle Denniston, which is, this is an $80 billion corporation, and yet it has a lot of regulatory matters before the federal government. The judge was talking about $270,000 in fines, which is a blip for a company of this size. So, Lyle, don't all "Time" journalists, not just Matt Cooper, now face a problem if they promise the next Deep Throat confidentiality, that they might well get overruled by their bosses if it comes to a legal battle?

DENNISTON: Well, Howie, I don't think this is anything less than an operational disaster for investigative journalists generally. Unfortunately, however, it's not unique, because the press essentially lost this battle because of timidity among press lawyers, frankly, 33 years ago in the Supreme Court decision. And by the way, I think there's some criticism due to "Time" and "The New York Times"' lawyers this time, too, because they messed around with this case, comparatively speaking, when they could have taken it to the Supreme Court earlier than they did. They could have made it look much more urgent than they could -- than they actually did. There were a number of strategic and tactical gestures that they could have made that would have brought this centrally to the court's attention at a time when the court was already focusing on the end of the term and didn't have a lot of time. But they didn't do what they needed to do to make this look as urgent as it in fact really is.

KURTZ: Although I wonder whether the ultimate outcome would have been any different.

Byron York, do journalists deserve special legal privileges when it comes to shielding sources?

YORK: I actually don't think so. There are shield laws in I believe 49 states, but there is no federal shield law, which this is where this is being -- where this is taking place.

I would say about this case, it's a fuzzy case, and we do not know exactly what's going on. We do know a few things. For example, one person who was considered a main suspect in the leak, Lewis Libby, top aide to Vice President Dick Cheney, authorized reporters to talk about any conversations he had with them. "Newsweek" today reports that Karl Rove, the president's top aide, also authorized reporters to talk about conversations that he had with them.

We don't know exactly what's going on. We don't know what Robert Novak, for example, has done with prosecutors.

KURTZ: I'm going to come back -- I'm going to come back...

YORK: So it's hard to -- it's hard for us to say too definitively about this case, because it's a very fuzzy, messy case.

SESNO: But if I may, what you can say about this case, Byron, is that this is going to have a chilling effect on journalists across the spectrum -- investigative journalists, absolutely, but also journalists well beyond that, because what are they going to say to their sources? If somebody says -- and I've had people say this to me -- can you protect me on this information? Well, yeah, as long as I'm not subpoenaed.

YORK: Well, Frank, let me say -- I actually did my homework for this case. If you do a Nexus search, a database search on the phrase "on condition of anonymity," which is often used in these type of stories, in "The Washington Post" in the last six months, it's been used 592 times.

SESNO: I know that, but...

YORK: "New York Times," 334 times.

SESNO: But what you have to...

YORK: Most...

SESNO: Compare this to what effect some of recent events have had on officials who work in the White House and elsewhere, who won't keep notes, won't send e-mails, don't keep diaries anymore, because all that stuff is subpoenaed.

KURTZ: I got to break in, because I want to come back to Lucy Dalglish.

With the Supreme Court essentially clearing the way for Matt Cooper, who is not off the hook here, and Judith Miller to go to jail, and with the upholding by a federal appeals court of the contempt citations against four reporters in the Wen Ho Lee case, can you remember a more dangerous time to be a reporter?

DALGLISH: No, certainly I can't. We have seen an increase in the number of subpoenas over the last six months that is mind- boggling. I'm hearing from Washington bureau chiefs who are telling me that stories are drying up because sources are saying, I don't care if you promise me confidentiality, they're going to make you crack. You're going to have to cough me up. I've been hearing from friends of mine around the country, who are civil lawyers, who are just deciding in the past, they never would have even attempted to subpoena a journalist in a high-profile case that they're litigating. But now they're saying, hey, I'm going to win, aren't I? Why shouldn't I subpoena the reporter?

This is a disaster, this is an absolute disaster.

KURTZ: All right. On that grim note, we have to take a break. When we come back, the question everyone is asking, why isn't columnist Robert Novak facing jail in the Valerie Plame case? Stay with us.



Lyle Denniston, columnist and CNN commentator Robert Novak started this whole thing two years ago. He was the first to report the outing of Valerie Plame as a CIA operative, based on two senior administration officials, and yet we don't know whether he was subpoenaed by the special prosecutor, we don't know whether he cooperated. William Safire had this to say this week in "The New York Times." "Mr. Novak should finally write the column he owes readers and colleagues, and perhaps explaining how his two sources, who may have truthfully revealed themselves to investigators, managed to get the prosecutor off his back." Do you agree with that?

DENNISTON: No, I don't agree with that. I think Bob Novak is like the rest of us. I think Bob Novak is entitled to keep his confidential sources secret. If the prosecutor went after him, which we don't know, because so much of this whole incident is secret, I hope that Bob resisted that. I don't know whether he did.

Why he is off the hook is something I think between him and his -- and his conscience, as well as his journalistic ethics, and with the prosecutor himself, who has not exactly been an example of nobility and propriety in this whole episode. So Bob, I think, is entitled to keep his own sources as well as the process that he's undergone here in protecting that source secret.

KURTZ: All right. Now, Novak was asked about this very question this week on CNN'S "INSIDE POLITICS." Let's take a look.


ROBERT NOVAK, CNN COMMENTATOR: Well, they're not going to jail because of me. Whether I -- whether I said -- answer your question or not, it has nothing to do with that. That's very ridiculous to think that I'm the cause of their going to jail.


KURTZ: Lucy Dalglish, the question is not whether Novak should reveal his sources, the question is whether he owes the rest of us any sort of comment about his role? What do you think?

DALGLISH: I think he does owe us a comment. I'd like to know what is going on. I don't know need to know who his sources were or what his agreement was with his source. But I would like to know what's been happening in regards to this investigation. Everybody else who was subpoenaed in connection with this story has not identified their sources, but they have said, this is what happened. I -- I would like to know, and so do most of the journalists that I talk to.

KURTZ: Byron York?

YORK: I would certainly like to know, but I don't think -- my guess is that -- and I believe Novak has actually said that he's waiting until this thing is resolved, and the case is not resolved at this point. Fitzgerald has given us the idea that most of it has been taken care of, but he was fixing up I believe what he called loose ends. And I think Novak has said, after it's resolved, then he'll talk.

KURTZ: You are referring to Patrick Fitzgerald, the special prosecutor...

YORK: Exactly.

KURTZ: ... in the Plame case.

Now, Frank Sesno, "Newsweek's" Michael Isikoff reports this morning that e-mails turned over by "Time" -- these are Matt Cooper's e-mails -- show that Karl Rove, the president's top domestic policy adviser in the White House, was a source for Matt Cooper. But Rove's lawyer, while confirming that he was interviewed by Matt Cooper, says he did not disclose Valerie Plame's CIA status to Matt Cooper or anyone else. So does this story get us very far in understanding...?

SESNO: It certainly gets us to the chapter we might entitle if we writing a book, "be careful what you wish for," because if you're the president of the United States or you're any of the people around the president -- and I've covered White Houses -- they all leak when it serves their interests. When something like this happens, and if the reporter is forced to turn over notes, you don't know what's going to be out there. And we do know that Cooper had conversations, apparently, with Rove. What those conversations were, what those notes contained, obviously we're going to find out more, it appears we'll find out more, in the days ahead.

KURTZ: Right. I mean, obviously this is an explosive story, but I do want to stress, there is no evidence so far that Rove was the one or one of the administration officials who turned over Valerie Plame's name to Cooper or anyone else, but something tells me there will be a lot of follow-ups.

Still to come, the high court has handed down some major rulings this term, but you wouldn't necessarily know that from watching television news.


KURTZ: In the term that ended this week, the Supreme Court issued major decisions on seizing private property, restrictions on medical marijuana and public displays of the Ten Commandments.

So Lyle Denniston, just briefly, why has that gotten a fraction of the media attention of, I don't know, Michael Jackson and Martha Stewart and the missing woman of the week?

DENNISTON: Well, I think part of the explanation this year, Howie, is that, at the end of the term, or in the weeks leading up to the end of the term, the primary focus of the American media, so far as the Supreme Court was concerned, was on whether or not there would be a retirement from the court and what that would mean to the court's future.

The press generally doesn't do a very solid job of covering the Supreme Court cases, other than those major cases like the abortion case or death penalty cases. The cases...

KURTZ: All right. Lucy Dalglish, do you agree with that?

DALGLISH: Do I agree with the way they were covered? You know...

KURTZ: That the press doesn't do a very good job of devoting attention?

DALGLISH: You know, this week is tough. There were so many cases that were decided on Monday. And I think, when you have that many, it's difficult to do it. But quite honestly, the Ten Commandments cases, I watched that argument. Those decisions came down exactly the way I thought they would. And I didn't think there was anything all that surprising in the jurisprudence on those two decisions.

KURTZ: Frank Sesno, 10 seconds.

SESNO: I think the media for the most job do a terrible job of covering the court. One reason is because of the picture you just saw. The picture is a bunch of people sitting in robes in a room. There isn't an Air Force One, there isn't a big gaggle and a big photo op on the Hill, and the public is the loser in the process, because they don't understand these very important, complex decisions as a result.

KURTZ: All right. Thanks to all our guests for coming on this holiday weekend. We'll be right back.


KURTZ: "The Sacramento Bee" has discovered its own Jayson Blair. Columnist Diana Griego Erwin left in May after she couldn't verify the existence of people quoted in four of her pieces. Now a "Bee" investigation has found more than 40 people quoted, whose names and addresses could not be found in any public records. Editor Rick Rodriguez told me there was no reason to suspect the award-winning Erwin was writing fiction. And Diana Erwin, who initially denied wrongdoing, she has nothing to say, no comment about the shame she brought to her newspaper. Well, that's it for this edition of RELIABLE SOURCES. I'm Howard Kurtz. Join us again next Sunday morning, 11:30 Eastern, for another critical look at the media. "LATE EDITION" with Wolf Blitzer begins right now.


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