Piling on Matt and Vivnovka

As you've probably heard, Jane's source of gossip was right when he said that the real story behind the Vivnovka testimony was that Vivnovka was alerting Luskin to critical information about Cooper's testimony well before Rove reversed his claim that he hadn't talked to anyone about the leak (besides Novak, I mean). That's story enough--because it means Karl's still in some deep hot water. But I'd like to add to Atrios' sentiment.

It's time we started discussing just what the fuck journalistic ethics were involved in the Viveca Novak/Matt Cooper/Luskin love triangle. If what we've learned recently is true, Matt Cooper, who went to court so that he wouldn't have to reveal a source, told colleague (not editor) Viveca Novak who that source was, and she in turn blabbed about it to a likely target of the investigation.

What does it says that Matt Cooper was willing to go to jail to protect his source, but willing to blab it to an apparent blabbermouth like Vivnovka? Given the silence emanating from those associated with this case, I think they're aware that this is not just an ethical, but a legal problem.

Ms. Novak declined to comment, as did Mr. Luskin and Randall Samborn, Mr. Fitzgerald's spokesman. Jim Kelly, Time's managing editor, said he would not comment on the matter. Mr. Cooper and James Carney, the magazine's Washington bureau chief, also declined to comment.

Wow. We haven't heard that much silence since Judy got her get out of jail by sacrificing all principle card. Could it be that Fitzgerald disapproves of people tipping off investigation subjects over the course of friendly gossip?

I'd like to add one little detail to condemn the Vivnovka/Cooper/Luskin love triangle regarding Cooper's relative willingness to testify. As Jeralyn explains, the chronology goes something like this:

• Cooper is subpoenaed generally
• Fitzgerald offers to narrow the scope to just Libby, but Cooper still fights the subpoena
• After Cooper and Time are held in contempt, they negotiate to reveal details relating only to Libby
• Cooper gets a waiver from Libby and testifies
• Cooper is subpoenaed again more generally once Fitzgerald realizes Libby was not Cooper's first source
• Cooper does not try to get a waiver from Rove until just before he is jailed--Cooper waits until he is invited to get a waiver to ask for one

Now, Cooper's lawyer Dick Sauber said the following about getting releases to talk to Rove and Libby.

MATTHEWS:  Why do you think these people—you have a very strong firsthand experience with Karl Rove, the president‘s chief of staff, because he finally did release your client to speak. Right? 

SAUBER:  Yes. 

MATTHEWS: What finally made him do it?  What human impulse said to Karl Rove, damn it don‘t make this guy go to jail.  He‘s a good guy.

SAUBER: I‘ve never spoken to Karl Rove, so I can‘t tell you.  All I know is that Mr. Rove‘s lawyer was quoted in the “Wall Street Journal” as saying, if Matt Cooper is going to jail, he‘s not going to jail for Karl Rove. 

MATTHEWS:  Bob Luskin, the attorney, yes.

SAUBER: Yes.  I took that as an invitation to pick up the phone and say if that really is the case, give us a personal and direct waiver so that Matt can testify. 

MATTHEWS: Well, Scooter Libby‘s lawyer waited for about 85 days to say, I didn‘t know I was the source that she was protecting.  Do you find that credible? 

SAUBER:  I don‘t really know what happened between Scooter Libby and Judy.

MATTHEWS: Well, what do you think is the difference between Karl Rove having the human impulse or whatever to release your client, Matt Cooper, to speak about this big leak case, and the impulse that kept Karl Rove [sic] from doing the same exact thing? 

SAUBER: A couple of things.  One, I never got a call from Karl Rove‘s lawyer as Matt headed off to jail.  So I had to pick up the phone, and call Karl Rove‘s lawyer and ...

MATTHEWS:  Are you saying that Bob Bennett dropped a—missed a chance here to get his client out?

SAUBER: No, no, no.  Not at all.  No, not at all.  I think he did absolutely the right thing.  But we picked up the phone and called Scooter Libby also ...

MATTHEWS:  What did he say?

SAUBER:  And he said absolutely.  You have my waiver and...

MATTHEWS:  So he was clear with you guys, though, he wasn‘t going to...

SAUBER:  There was no hesitation.  There was no—I didn‘t think—no reluctance to go ahead and...

MATTHEWS: Was the nature of the conversation between your client, Matthew Cooper, and Scooter Libby significant enough for him to want to keep it secret—as you look back on it? 

SAUBER: No, not at all.  And he didn‘t keep it secret.  Matt spoke about it in his article.  Scooter Libby, so far as we know—and his lawyer—never expressed any reluctance or any hesitation about the complete voluntary nature of his waiver. [my emphasis]

As Sauber tells it, he picked up the phone and called Libby to get a waiver to testify. Now, maybe he did that because Fitzgerald told Sauber that Libby wanted Cooper to testify (Libby knew, of course, that Cooper's testimony would help more than it would hurt). Nevertheless, Sauber describes his actions wrt the Libby waiver as very proactive. He didn't wait for Libby to invite him to negotiate. He took it upon himself to start the negotiation.

Now, apparently he did the opposite with Rove. Rather than picking up the phone and negotiating with Rove in Fall of 2004, Sauber fought the subpoena. He never requested a waiver until Luskin the blabber mouth "invited" Sauber to initiate negotiations.

And Sauber describes these negotiations at the same time as he acknowledges that Cooper's testimony about Libby was not at all (well, mostly not) incriminating.

Sauber and Cooper made a deal to testify only about Libby--when they knew, but Fitzgerald did not, that Cooper's testimony would help Libby. And Sauber initiated waiver discussions with Libby, while he didn't initiate similar discussions with Rove until after he had been "invited."

In other words, Sauber and Cooper based their willingness to testify--and get waivers to testify--based on their perception of how incriminating Cooper's testimony would be to the source in question. For a source they knew they could help, they agreed to do what it took to testify. But for a source they knew Cooper would incriminate, they did not do the same thing--proactively attempt to negotiate a waiver.

Since when has the First Amendment been contigent on the degree to which speech would incriminate a source?

Comments

[DemFromCT]

Kudos to Jane. From the Agonist:

The funny thing is, and bloggers see this more than most, deep down they are scared of us and they feel threatened. Because now they are being treated as they have treated others for so long: as objects to be investigated, fact checked and generally distrusted. They are finally being held accountable. And they do not like it.

So, their last best chance, at least they think, is to throw out the ethics card, to insinuate that bloggers are unethical because it is just so tempting to spread unsubstantiated rumors (and yet they all read Drudge), that there is no over-sight and no editorial structure (lot of good that did Ms. Run Amok at the Times). My suggestion to the big celebrity elite journalists is to be very careful what kind of a campaign you wish for. You might just get it.

Update: Very interesting update after the jump.

[emptywheel]

Yeah, the reason why the Plame Affair is so troubling to the press is the blogosphere has finally began to compete for real numbers (and not just attention) with smaller outlets of the MSM at precisely the time the Press is a primary actor in a big crime.

Btw, after rereading this, I realize my point deals primarily with Cooper and not Vivnovka. But I'm so fond of Vivnovka--it reminds me of the Czech names I invented for myself when living in Prague so I could reserve the good tables at my favorite hospoda. I was "Kolova" until I realized Kolarka was more accurate and--given the literary pretentions of said hospoda--more appropriate. In any case, apologies to Vivnovka for conflating her blabbiness and marginal obstruction with Cooper's selective willingness to seek waivers to testify.

[Pachacutec]

This sounds more like the work of a cautious attorney.

I think Dick Sauber wanted to keep his client away from anything on the record that might entangle him in a crime, even as a witness.

Perhaps he feared that if the prosecutoer were to get hold of and pull too many threads, it might not reflect so well on his client.

You have highlighted one possible reason this might be true. While I doubt that Cooper knew that Viveca had warned Luskin, it's also true that, as an attorney, you never know what might happen once your client gets involved. Cooper may have confided in Sauber, at the least, that he may have mentioned to others at Time the identity of his source(Rove).

The problem for Time, Cooper and Novak now is that their actions can potentially be construed as havong forwarded a conspiracy to obstruct justice.

So, to my mind, Sauber was probably the author of the strategy that had Cooper more forthcoming regarding Libby than Rove, and for good reason, from a defense bar point of view.

Does that make sense?

[Sebastian Dangerfield]

EW-
This analysis serves very well to demolish the perception -- shared by many -- that Cooper's role in this sorry affair was somehow far less unseemly than Judy's. Floyd Abrams's protests notwithstanding, it seems overwhelmingly clear that Judy's unwillingness to testify was -- until shaken by a game of real hardball -- in direct proportion to the magnitude of the damage that she believed her testimony would inflict on Scooter. (And, of course, her amnesiac's testimony was pretty obviously calculated to minimize that damage as much as her notebooks (and the threat of possible obstruction charges) would allow, as you have previously shown.) Cooper may not carry as much represhensible extraneous baggage as Miller, but certainly his performance in this little passion play has been no less dishonorable.
And, Cooper's having turned right around and published his big "my testimony" article really just put the maraschino cherry on top of the whole effluent sundae -- however much it helped sate at least a portion of our collective appetite for information. He turned his eventual performance of his civic duty into a grandstand from which he could make his (previously rather obscure) name, and in so doing helped the perps shape their testimony and strategy.
Whatever one thinks of journalists' shield laws, there is no rational conception of one that should protect journalists not only covering for their sources' malefations but affirmatively tipping off their sources when they are subjects of criminal investigations.
In short, if journalists want to merit the protections of even a carefully calibrated shield law, they should start acting as journalists -- serving the interests of their audience, not the immediate needs of their sources.

[DemFromCT]

let's throw this in too. From PressThink during Jay Rosen's sabbatical by a guest blogger:

Guest Writer Steve Smith: Fortress Journalism Failed. The Transparent Newsroom Works.

He's the editor in Spokane: "The users of news aren’t hesitating. They are going to insist on an interactive, two-way flow of information, ideas and opinion— whether we like it or not. And if we don’t develop the user-as-producer model ourselves, others will do it for us or to us."

[emptywheel]

Wow, well-said Sebastian.

Pach, I hear what you're saying. And from the perspective of Sauber in Fall 2004, you may be right. But as Sebastian notes, if journalistic sheild laws are wielded preferentially to protect criminal wrong doing, then we're not going to have one very long. I do think Cooper would have testified eventually whether or not Rove gave him a waiver. But still, add in the timing of the election and this just stinks.

[KdmFromPhila]

I have a speculative question that may be off-topic but I'll ask it anyway: would the reporters such as Miller and Novak go to such lengths to protect their sources if those sources were members of a Democratic administration?

I ask because I can't figure out why such transparently unscrupulous figures as Rove and Libby command so much respect and deference. Do they have have a certain nefarious charm like Lawrence Olivier as Richard III? Have reporters been softened by years of right wing pressure, something akin to Rumsfeld's psych-ops? Does the deference of the media stem from the tacit assumption that the Republicans are the security "experts" who keep us safe at night?

Or do Republicans know how to tell more compelling, or more "microwaveable" stories that the press finds easier to consume?

[emptywheel]

Kdm

Don't forget that several reporters (including Walter Pincus) are facing jail time in the Wen Ho Lee case--which reportedly may get Governor Richardson in a whole lot of trouble. So you do see the same thing going on with Democratic politicos.

[Jay Rosen]

Hi guys. I hope to be back in the blogging fray soon. But if you want to see how the issue of confidential sources and "who are we protecting?" is playing out, watch to see whether the "anonymity was granted because..." construction becomes consistent and reliable in the New York Times, which is supposed to have a policy requiring it.

Like here: "The people who agreed to discuss the case were granted anonymity because they were not authorized to speak publicly about the matter and could face reprisals if they did so."

I have started to see it appear regularly, which counts because it at least puts on the onus on the Times to explain its motivation or reasoning in granting namelessness. Instead of telling us why sources want anonymity, explain why you gave in and granted it. Big diff.

It's a perfect example of why reason-giving can be important, even if the reasons aren't so hot and maybe we don't even buy them. (The one above is thin.) Reason giving can force the relevant actors to think in terms of justifying their actions, which in this case underlines that it is the Times that "acts," first, creating the anonymous source situation, and is thus accountable for that. "...were granted anonymity because."

The Washington Post is still at "sources requested anonymity because..." That's a signficantly different place to be.

[Jay Rosen]

P.S... My Washingtonpost.com chat with readers where some of this comes up.

[DemFromCT]

Thanks, Jay. Hadn't occurred to me to look for that, but i will now.

[al-Fubar]

I am probably missing something here, but wasn't Cooper's handling of the two waivers simply consistant with his prospects of getting them?

Asking Libby for a waiver was not hard, because Cooper's testimony was somewhat exculpatory. "I won't have to go to jail, and neither will you." Asking Rove for a waiver was altogether dicier, because the Rove might end up in the cell that Cooper avoided. It's like two people in the plane, and only one parachute. "If I go down, I may break, and then you'll go down anyway."

Yeah, there is the journalistic ethics aspects, but as George Bernard Shaw once reputedly told a titled English lady, "we've already settled that. Now we're just haggling over price."

-- Rick

[emptywheel]

Sure, Rick. But had Cooper asked Rove--and Rove denied it--Fitzgerald would have pursued an obstruction case with Rove, as he was about to do with Libby before Libby gave his waiver.

It's not the role of the journalist--who claims to be defending the source neutral principle of free speech--to determine how to apply free speech differentially.

[emptywheel]

Jay

Looking forward to having you back in the blogosphere.

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