Did Time Burn a Source? Conversation Disclosed in Print

121205 article asm Did Time Burn a Source?  Conversation Disclosed in PrintIn its Dec. 5 issue, Time magazine reported that special counsel Patrick J. Fitzgerald had asked one of its D.C. reporters, Viveca Novak, “to testify under oath about conversations she had with Robert Luskin, [Karl] Rove’s attorney, starting in May 2004.”

Neither Mr. Luskin nor Ms. Novak had expected to see news of those conversations in print. According to a source familiar with the matter, their talks had been off the record.

According to the source, Mr. Luskin told Mr. Fitzgerald to talk to Ms. Novak, signing a waiver. “The waiver that was executed was in a form that was similar to one that was used by Fitzgerald with other reporters—a waiver for the limited purpose of responding to questions from the special counsel,” the source said.

In other words, it was similar to waivers agreed to by Washington Post reporters Walter Pincus and Glenn Kessler, whose sources on the Valerie Plame Wilson affair remain unknown. The Post’s Bob Woodward has also declined to publicly identify his own source.

Time’s account of the conversations between Mr. Luskin and Ms. Novak arrived on newsstands Nov. 28. On Dec. 2, The New York Times reported on the substance of one conversation, writing that Mr. Luskin had learned from Ms. Novak that his client, Mr. Rove, might have spoken with Time’s Matt Cooper about Ms. Wilson.

That fact was significant because, at the time, Mr. Rove may not yet have told Mr. Fitzgerald about this conversation, and because Mr. Cooper was under pressure to reveal his source. The Washington Post reported on Dec. 3 that Mr. Luskin was using this conversation with Ms. Novak as a tool in his defense strategy, though exactly how (or if) this detail helps Mr. Rove remains murky.

So did Time magazine burn Mr. Luskin? Or did he waive his confidentiality when he came clean to Mr. Fitzgerald?

According to a person familiar with Time’s thinking, the feeling at the magazine was that any kind of understanding between Mr. Luskin and Ms. Novak was made moot when Mr. Luskin came forward to Mr. Fitzgerald. By approaching the special prosecutor and saying that he had learned of his client’s conversation with Mr. Cooper from Ms. Novak, he had turned the tables, making Ms. Novak the source. So who were they to protect?

Both Mr. Luskin and Time managing editor Jim Kelly declined to comment. Ms. Novak didn’t return calls.

“They were concerned that it would be perceived that she was doing Rove or Luskin a favor and not doing her job,” said one source. “What they are doing this week is trying to even the score.” Or pre-empt getting scooped.

According to one source, Ms. Novak was not in the loop on the decision to publish her source’s name. “Time management independently made a decision … without consulting her,” the source said.

Time’s response contrasted to that of The New York Times, where attempts to keep the identity of Judith Miller’s source secret—even after reporters had learned it from outside sources—were a source of tension within the newsroom.

In the paper’s 5,800-word attempt to come clean, managing editor Jill Abramson defended the decision, saying that if Ms. Miller were willing to go to jail to protect her source, it would have been “unconscionable then to out her source in the pages of the paper.” Ms. Novak is complying with Mr. Fitzgerald’s inquiry.

Another issue raised by the details that have emerged about the Novak-Luskin conversation is the propriety of Ms. Novak telling or even hinting to Mr. Luskin about her colleague’s “double-super-secret background” conversation.

“[Ms. Novak] was feeling [that Mr. Luskin] was giving a line of spin. He was trying to spin her and said it wasn’t true,” a person with knowledge of Ms. Novak’s conversation said, commenting on the reporter’s off-the-record chat.

Mr. Kelly told The Washington Post: “There’s no way that Viveca Novak knowingly, wittingly gave up a confidential source to Robert Luskin.”

This latest tidbit shot Mr. Luskin’s client’s legal travails into the news again, something that can’t make the Rove defense team happy. Time’s tangled history with Mr. Luskin dates back to the last-minute negotiations over the waiver that Mr. Rove gave Mr. Cooper to testify.

Mr. Cooper’s lawyer said he only felt free to seek a waiver after reading a comment by Mr. Luskin in The Wall Street Journal, in which Mr. Luskin said: “If Matt Cooper is going to jail to protect a source, it’s not Karl he’s protecting.”

After the two sides agreed to a personalized waiver, Mr. Luskin still harbored animosity toward Mr. Cooper for painting his client as dragging his feet. It “does not look so good,” he told The Washington Post. “[I]t just looks to me like there was less a desire to protect a source.”