The New York Times has an interesting article on Norman Pearlstine, editor in chief of Time magazine, and his decision to comply with a court order requiring Time to turn over its reporters notes to prosecutors investigating the Valerie Plame leak. Pearlstine and Time have been roundly criticized by other journalists for not continuing their defiance of the court, and the Times, which continues to defy the court’s order, has expressed its dismay at Time’s decision. The article is mainly about Pearlstine’s rationale:
In the months leading up to the decisive court rulings this week on whether Time Inc. had to turn over documents to a grand jury, its editor in chief, Norman Pearlstine, pored over histories of how other editors, publishers and public officials had handled cases where the ultimate law of the land went against them.
Mr. Pearlstine, who has a law degree, would wander into colleagues’ offices or call other journalists, lawyers and academics and bring up case law, according to people with whom he discussed the case.
Did you know, he would ask, that in 1952 President Harry S. Truman bowed to the Supreme Court when it blocked his plan to seize control of the nation’s steel mills? And that the Nixon administration turned over the Watergate tapes after the courts determined that executive privilege did not trump investigators’ demands?
His first, “kneejerk” reaction, he said, was that nothing was more important than a journalist’s keeping his word. But the more he looked at all this, he added, the more he came to believe that it was more detrimental to hold on to the files.
“The journalist and the lawyer were fighting in my head,” he said. “But if presidents are not above the law, how is it that journalists are?”
Mr. Pearlstine said that he concluded about two weeks ago that no one, including Time Warner, Time Inc.’s parent, was above the law.
As a legal matter, it’s hard to see why the case was ever in doubt, since the federal courts, unlike many states, do not recognize a “shield” privilege for journalists. Mr. Pearlstine concluded:
Mr. Pearlstine said that he still believed in the confidentiality of sources, but that each situation had to be determined on its merits. “Thinking we’re above the law rings wrong to me,” he said.
It’s a novel idea, but who knows: maybe it will catch on.