By Tom Scocca

July 10, 2005 | 8:00 p.m

On June 30, Time Inc. editor in chief Norman Pearlstine compared his magazine's legal struggles to those of embattled United States Presidents. Presidential examples, he wrote in a public statement, show "that our nation lives by the rule of law and that none of us is above it."

Nor, however, is Time out from under the law. With his statement, Mr. Pearlstine agreed to turn over notes and e-mails to the grand jury investigating the leak of C.I.A. agent Valerie Plame's identity-abandoning his company's share of the fight to keep reporter Matt Cooper's confidential sources secret. But on July 5, special prosecutor Patrick J. Fitzgerald declared that the fight would go on regardless. In a court filing, Mr. Fitzgerald repeated his demand that Mr. Cooper himself testify about his sources, or be jailed for contempt, along with New York Times reporter Judith Miller. So Mr. Pearlstine stands accused of selling out journalistic principle-without even finding a willing buyer. Mr. Pearlstine argued that he was out of options; three days earlier, the Supreme Court had declined to hear Mr. Cooper and Ms. Miller's final appeals of the contempt ruling. But negative reviews started coming in immediately after he announced the fight was over. At 10 that morning, Mr. Pearlstine gathered the New York staff in the magazine's 24th-floor conference room to explain why he had agreed to relinquish Mr. Cooper's notes. The Washington bureau joined in on a conference call. "People were disappointed with the situation and frustrated with the decision," said a Time staffer from the D.C. bureau. Some of the complaints had a historical bent, according to a participant: One New York staffer asked Mr. Pearlstine whether a source with confidential documents such as the Pentagon Papers would be willing to come to Time. Another cited The Times' decision in the 1970's to suffer fines and the jailing of reporter Myron Farber rather than give up the names of Mr. Farber's sources. Times publisher Arthur Sulzberger Jr. had issued a statement that morning citing the same case, saying The Times was "deeply disappointed" by Mr. Pearlstine's cooperation with the subpoena. Wherever the courts may draw the limits of the First Amendment, the delivery of Mr. Cooper's notes to the grand jury demonstrated a basic constitutional truth: The reporter has no inherent journalistic rights at all. Freedom of the press belongs to the publisher, who may exercise, delegate or curtail it as the business' needs demand. "I disagree with Norm's decision," Mr. Cooper said on the phone July 4, "but at the end of the day, I've made it abundantly clear I can keep a secret. I've done so for two years under threat of jail." Now with jail coming ever closer for their reporters, the two executives have struck divergent rhetorical poses: Mr. Pearlstine bowing, presidentially, to the majesty of the law; Mr. Sulzberger, the aggrieved citizen, pushing for civil disobedience. Their legal situations differ-unlike Time Inc., Mr. Sulzberger's company was not directly subpoenaed by Mr. Fitzgerald. But the real split is philosophical and tactical. The two men represent different kinds of companies, for starters-next to the entertainment behemoth of Time Warner, the New York Times Company looks like a mom-and-pop shop. "We wondered what The New York Times would have done," the Washington staffer for Time said. "If they were a party to this suit, people wondered if they would have made the decision we did, and just what kind of company Time is. It's part of a much larger conglomerate now." " The Times-though a publicly held company-is controlled by the Sulzberger family, and thus has the freedom to take positions that they deem to be in the interest of journalism without fear of the reaction of public stockholders," said Daniel Okrent, the former Times public editor and former Time Inc. editor for new media. Yet there's more than idealism behind Mr. Sulzberger's approach. Two days before Mr. Pearlstine's capitulation, a three-judge panel held Times reporter James Risen-along with three reporters from other publications-in contempt in another dispute over confidential sourcing. The reporters are sought as witnesses by atomic scientist Wen Ho Lee, who is suing the federal government for allegedly leaking his private information to the press during his high-profile-and essentially baseless-prosecution for spying. Mr. Sulzberger, in a public statement, described that contempt ruling as "yet another blow to journalists' ability to report on how the government operates." Ms. Miller has also had her telephone records subpoenaed in yet another grand-jury investigation, likewise being run by Mr. Fitzgerald-though a judge has sided with The Times in that case. Ms. Miller, reached on her mobile phone as she rode with her husband on a Washington-bound train for her July 6 final hearing, said that she could not comment on her legal situation. "It's not like me not to talk," she said. "I wish I could talk; I can't." Floyd Abrams, the First Amendment lawyer who is one of Ms. Miller's lawyers-and who represented Time and Mr. Cooper until they decided to separate their case from Ms. Miller's in April-said that The Times is concerned with the broader context. "It certainly is true that The Times necessarily has viewed all the cases as part of a common and growing threat to their ability, and that of the press generally, to promise confidentiality to sources and to keep their promises." Mr. Abrams added that he "wouldn't really want you to conclude either from me or generally that Time doesn't have a broad view." But Mr. Pearlstine emphasized, in his meeting with the staff, his belief that the current case involved a unique convergence of events, making his decision a singular one. "I knew that Norm had thought about the decision a lot and read a lot of court cases and [was] thinking about weighing his knee-jerk instincts with following the law," Mr. Cooper said. "I can't say I was shocked. I knew that Norm was leaning in that direction." Mr. Cooper said that he didn't consider quitting the magazine over the surrender of his notes. " Time has totally backed me up on this," Mr. Cooper said. "Nobody has stifled my dissent. I'm not marching off anywhere." Mr. Pearlstine also informed the staff that he plans to revise the magazine's editorial guidelines to explain how to cope with the possibility of having e-mail and electronic notes subpoenaed, but he didn't go into specifics. "I think we're all digesting what to do here," a second Washington bureau Time staffer said. "In my mind, if you didn't know an e-mail belongs to the company, you're an idiot." "I hope there is a rule established, as difficult as it is," the Washington staffer added. "I do know of at least one Time reporter who doesn't write down the name of confidential sources. He shares them with editors, but he won't write names down on paper at all. I guess that's a solution." "I knew right away from his demeanor that he was Deep Throat," Stanley Pottinger said. Mr. Pottinger, the prosecutor-cum-novelist, was on his mobile phone as he drove through Westchester, discussing his place among the keepers of journalism's most famous secret. This week, Bob Woodward's Deep Throat memoir, The Secret Man, arrives in bookstores-including a section that puts Mr. Pottinger on the ever-growing list of people who knew that F.B.I. official W. Mark Felt was The Washington Post's anonymous Watergate source. "My son sent me an e-mail this week," Mr. Pottinger said, "and he said, 'You know, that's pretty good, Dad. You never even told me.'" He said he'd gotten another e-mail, from a longtime friend: "I can't believe you didn't tell!" Unlike Mr. Woodward, Carl Bernstein or Mr. Felt himself, Mr. Pottinger was safely tangential to the Watergate investigation. His brushes with revelation are mainly as Mr. Woodward describes them: The first came in 1976, when he was an assistant attorney general investigating whether the F.B.I. had unlawfully broken into the homes of Weather Underground members. Mr. Felt was one of his witnesses. During Mr. Felt's testimony, Mr. Pottinger recalled, he was asked if he'd been under any pressure from the White House. Mr. Felt responded that he hadn't, but that he visited the White House so frequently some people thought he was Deep Throat. After a lunch break, the grand jurors returned. Before dismissing the witness, one had a question: "Well, were you?" Mr. Felt "kind of turned white, flushed and said no," Mr. Pottinger said. He stopped the testimony, reminded Mr. Felt he was under oath, and offered to withdraw the question because it was irrelevant to the proceedings. "He was immediate in his response, in a way that made it clear he was troubled by it," Mr. Pottinger said. "That confirmed it for me." The second incident, described by Mr. Woodward and confirmed by Mr. Pottinger, was a dinner in 1977 at Ethel Kennedy's home in Hyannisport, Mass. Mr. Woodward and Mr. Pottinger were both at the meal, which Mr. Woodward-who had learned of Mr. Felt's near-exposure to the grand jury-writes made him feel "as if the ghost of Banquo was on the scene." As guests prodded Mr. Woodward for clues to Deep Throat's identity, the reporter deflected the interrogation to Mr. Pottinger, saying, "Stan thinks he knows, don't you?" But Mr. Pottinger said he didn't let word slip, then or ever. "There was one occasion when somebody I was with had a very strong case to make that it was Mark Felt," he said. "They had no idea that I really knew, and I didn 't tell them. It really wasn't something I thought should be made public." Mr. Pottinger said he remembered a single temptation, during a chance encounter with Leonard Garment, Nixon's former legal council, who had written a book identifying John Sears as Woodstein's secret source. "Len was on a book tour when I was on a book tour," Mr. Pottinger said. "We bumped into each other at the Union Club in New York. He was talking about his book, and I was standing nearby. I like Len a lot, and I really respect him, but there was no way to say to him, 'I think you missed the guy.'" -Rebecca Dana New York Times pundit standings, June 21-July 4 1. Frank Rich, score 20.5 [previous rank: 7th] 2. Thomas L. Friedman, 17.0 [2nd] 3. Nicholas D. Kristof, 13.0 [3rd] 4. Paul Krugman, 12.0 [1st] 5. Bob Herbert, 7.5 [6th] 6. William Safire, 1.0 [no rank] 7. (tie) David Brooks, 0.0 [4th] John Tierney, 0.0 [8th] On June 29, pundit emeritus William Safire arose to defend Judith Miller, thereby earning a spot on that week's Most E-Mailed List-unlike his replacement, John Tierney. In the two weeks spanned by this special edition of the pundit standings, the luckless Mr. Tierney went zero for four, continuing a scoreless streak that stretches back to the end of May. Besides the returning retiree, other Op-Ed guests outperforming Mr. Tierney in those weeks have included Stanley Fish, Ted Koppel, John Kerry, Dave Eggers and Brooke Shields. -T.S.