By Tuesday, Oct. 25, the legal team that had backed New York Times reporter Judith Miller in her battle with Special Prosecutor Patrick J. Fitzgerald began splintering, as the interests of the reporter and The Times diverged.
Floyd Abrams, the First Amendment lawyer hired by The Times to help handle Ms. Miller’s showdown with Mr. Fitzgerald, told The Observer “it would be awkward” for him to offer Ms. Miller legal advice now.
“It’s one thing to represent her and to keep her confidences in the battle against Fitzgerald, but that’s a different situation than the situation in which there may be differences between her and the paper itself,” Mr. Abrams said, adding that he remains close to Ms. Miller.
And who was representing the paper? The Times’ ultimate decision maker, publisher Arthur O. Sulzberger Jr., was a vanishing presence. As other layers of Ms. Miller’s support fell noisily away, there was no support from her from the publisher; he has not been seen by reporters in the newsroom since Oct. 3, when he triumphantly led Ms. Miller home from jail—although, according to multiple newsroom sources, on the morning of Oct. 24, he met with Ms. Miller in his office. A Times spokesperson declined to confirm that the meeting had taken place.
“There is a certain amount of chaos,” a Times staffer said. “Everyone is talking about the publisher.”
The editors of The Times had begun overtly turning against Ms. Miller a week earlier, on Tuesday, Oct. 18, at the weekly third-floor meeting of masthead editors. Executive editor Bill Keller wasn’t there—he was in Beijing, on a tour of foreign bureaus; nor was managing editor Jill Abramson, who was off delivering a speech at Middlebury College in Vermont. With managing editor John Geddes presiding, the editors at the meeting agreed that the paper was in crisis, and that the roiling would persist until Ms. Miller left The Times, according to a person who was present.
“It was unanimous,” the source said. “People said we have a real problem, because the newsroom is worried what will happen to her next. They want her to be dealt with decisively, and they want her to be dealt with more aggressively.”
Yet, Ms. Miller was still on board. On Oct. 19, she appeared before Congress to testify for a federal shield law to protect reporters from being compelled to reveal their sources. But she was going it alone.
“That she’s still being permitted to appear publicly as a rep of the paper is shocking,” a Times staffer said of Ms. Miller’s testimony.
While in D.C., Ms. Miller didn’t visit the paper’s Washington bureau. Meanwhile Mr. Keller, facing questions from public editor Byron Calame about the whole Miller episode, began distancing himself from the go-to-the-mat-for-Judy strategy. “If I had known the details of Judy’s engagement with Libby, I’d have been more careful in how the paper articulated its defense,” Mr. Keller wrote Mr. Calame, on the same day that Ms. Miller went to Capitol Hill.
But the vaporous sense that Ms. Miller had under protection from the top of the paper was hard to shake.
“Like any perception in any newsroom, it takes on a life of its own,” one staffer said. “If someone perceives someone to be protected by the publisher, it’s like there’s a force field put around them. If Bill perceived Arthur is protecting Judy, then it’s real protection. Bill is the one who has to decide what Judy’s assignment will be, and whether she lives up to the standards of the newspaper.”
Mr. Sulzberger declined repeated requests for an interview.
By that week’s end, the movement picked up speed. On Friday, as the unhappy newsroom began to grumble about the executive editor’s absence, with sources calling his Asia trip a “junket,” Mr. Keller sent a version of his note to Mr. Calame out to the staff. Mr. Sulzberger received advance notice a few hours before it hit inboxes, according to someone familiar with the matter.
Shortly after that, Maureen Dowd filed the first major Op-Ed piece in weeks on the subject of Ms. Miller. The lack of Op-Ed discussion, Ms. Dowd said, didn’t reflect a desire to protect a colleague or the paper. “I just have to say that anybody who thought that we were expected to be silent to help out was wrong,” she said.
But when the silence broke, it broke definitively. Mr. Keller lamented Ms. Miller’s “entanglement” with Vice Presidential chief of staff I. Lewis (Scooter) Libby; on Saturday, Ms. Dowd declared in her column that if Ms. Miller resumed her job, “the institution most in danger would be the newspaper in your hands”; on Sunday, in his public editor’s column, Mr. Calame wrote that it will be “difficult for her to return to the paper as a reporter.”
Meanwhile, Mr. Sulzberger had become virtually invisible. The reporters and editors who had produced The Times’ 5,800-word Oct. 16 piece on Ms. Miller’s legal battles never heard from Mr. Sulzberger after the story ran.
Mr. Sulzberger did, however, weigh in to tell Mr. Calame that he disputed one of his key quotes in the story—in which Mr. Sulzberger had said, describing the paper’s legal strategy, “This car had her hand on the wheel,” meaning Ms. Miller’s hand. Mr. Sulzberger felt the quote hadn’t been presented “in the proper context,” as the public editor recounted it. In an earlier interview, Mr. Sulzberger explained to Mr. Calame, he had said that “there were other hands on the wheel as well.”
Embattled public figures have often blamed newspapers for misusing quotes. But this was the publisher of The New York Times accusing his own newspaper of misrepresenting his remarks—shades of Charles Barkley being “misquoted” in his autobiography.
But Mr. Sulzberger is not a roly-poly N.B.A. legend, and nobody was laughing about it. Multiple sources at The Times said that Mr. Sulzberger had been complaining about his own paper to associates in private.
Deputy managing editor Jon Landman, who headed the Miller-coverage team, said by phone that his reporters had quoted Mr. Sulzberger in the proper context. Mr. Landman said he’d met with Mr. Calame for 45 minutes to discuss the quotation and had provided the public editor with transcripts from Mr. Sulzberger’s interviews.
Mr. Landman suggested to The Observer that interested parties ask Mr. Calame “for the stuff I sent him. Read it, and then everyone can draw their own conclusions.”
Mr. Calame declined a request to supply the transcripts.
Sources familiar with the interviews, however, said that the “hand on the wheel” metaphor first appeared in a question from reporter Janny Scott on Oct. 5. “It did seem like [Ms. Miller’s] hand was on the wheel?” Ms. Scott asked, to which Mr. Sulzberger replied that several participants had mutually driven the legal strategy.
A week later, talking to Times reporters Don Van Natta and Adam Liptak, Mr. Sulzberger brought up the metaphor on his own. He had been asked, “Were you comfortable with the level of information you were getting?”
Then Mr. Sulzberger responded that Ms. Miller had the wheel, “because,” he said, “she was the one at risk.”
But who was driving?
People familiar with the legal decisions in the Miller case have described, in public comments and private interviews, a process in which Ms. Miller and Mr. Sulzberger offered substantial guidance—and in which Ms. Miller took a more central role as the case wore on.
In August 2004, when Mr. Fitzgerald subpoenaed Ms. Miller to testify before the grand jury investigating the leaking of C.I.A. operative Valerie Plame Wilson’s identity, The Times’ legal team was a team largely in agreement, according to someone familiar with the matter.
The group setting the strategy included Times in-house lawyer George Freeman, outside counsel Mr. Abrams, Ms. Miller, Mr. Sulzberger, Mr. Keller and Russell Lewis, then president and C.E.O. of the New York Times Company, among others.
The group’s instinctive impulse was to resist the subpoena. The Times had resisted many in the past, for the sake of the principle of a free and independent press, and Mr. Fitzgerald’s reliance on waivers from other journalists’ sources struck the group as coercive and open to abuse.
But there were problems with a pure First Amendment defense: The confidential source that Ms. Miller wanted to protect was not some low-level whistleblower, but rather a powerful, high-ranking official, Mr. Libby. And the case law was not favorable.
According to someone familiar with the matter, it was the lawyers who proposed softening the absolute journalists’-rights position and reaching out to the special prosecutor to see if Mr. Fitzgerald would agree to limit his questions to a single source, as well as to Mr. Libby’s lawyer, Joseph Tate, to see if his client might be willing to assure Ms. Miller that his waiver was freely given.
“It did not take any convincing, at least in my presence, to get Arthur to agree,” Mr. Abrams said. “He thought it was a good idea. Judy was less enthusiastic.”
Ms. Miller came around to that point of view. But Mr. Fitzgerald wouldn’t agree to limit his questioning—and Mr. Tate, in Mr. Abrams’ estimation, sent mixed signals about the waiver. (Mr. Tate has publicly disputed Mr. Abrams’ claim that he was unclear.)
Once Ms. Miller was in jail, The Times’ original lawyers, Mr. Freeman and Mr. Abrams, found themselves at odds with Robert Bennett, the Washington lawyer who represented Bill Clinton against Paula Jones, and who had been added to the team at Ms. Miller’s behest.
Mr. Freeman and Mr. Abrams advocated having Ms. Miller stay in jail through Oct. 28, when the grand jury is set to expire. Mr. Bennett sought to reopen negotiations to get her out.
“Arthur’s position on this and other matters was precisely what I thought it should be,” Mr. Abrams said: “to permit Judy to make decisions that affected her personal freedom, and to support her in whatever decisions she reached.”
In the end, Ms. Miller chose to follow Mr. Bennett’s advice and negotiate. There was resistance on The Times’ end from Mr. Freeman and Mr. Abrams, said a source familiar with the matter, because they worried about the perception that Ms. Miller was abandoning her principle.
“I think it took [Mr. Bennett] that long to convince the Times lawyers to look at this waiver issue head-on,” said a lawyer familiar with the case who is a Bennett ally. “I know he’s not on good terms with the Times management.”
Eventually, Mr. Bennett ended up trying to stand between Times readers and Ms. Miller’s story. “I was very much opposed, for legal reasons and other reasons, for Judy to write in the paper about her grand-jury testimony,” Mr. Bennett said. “But she was under a lot of pressure from the newspaper that required her to do it as an employee of The New York Times.”
So Mr. Sulzberger’s crusade fizzled. Just a year ago, he wrote with Russell Lewis on The Times’ Op-Ed page that the Miller case struck at the heart of the press’ ability “to help hold government accountable to its citizens.” Ms. Miller’s plight, the two wrote, proved the need for a federal shield law “to give meaning to the guarantees of the First Amendment.”
Does Mr. Sulzberger plan to revisit the story in print? “At this time,” a Times spokesperson wrote, “he’s not planning on writing another article.”
New York Times pundit standings, Oct. 18-24, 2005
1. Thomas L. Friedman, score 8.0 [rank last week: 4th]
2. Frank Rich, 5.0 [2nd]
3. Maureen Dowd, 3.5 [1st]
4. (tie) David Brooks, 0.0 [3rd]
Bob Herbert, 0.0 [tie—5th]
Nicholas D. Kristof, 0.0 [tie—5th]
John Tierney, 0.0 [tie—5th]
The most dramatic Op-Ed column of the TimesSelect Era—Maureen Dowd’s “I’ve always liked Judy Miller” offering—inspired three Andrea Peyser columns in a row. But it only made No. 19 on the week’s Most E-Mailed list, behind free-content pieces about tourist attractions in Boone, N.C., and revisions to the GRE. If the people won’t even pay to see a public fragging, what exactly are they going to pay for?