Wednesday, January 12, 2005

On the Memogate Independent Review Panel - UPDATED

UPDATED: Tony Blankley at Townhall argues forcefully along a similar line of reasoning that the Thornburgh/Boccardi panel was flawed from the beginning.

Let's start with the title of the CBS Panel: "Report of the Independent Review Panel Dick Thornburgh and Lewis D. Boccardi; Kirkpatrick & Lockhart Nicholson Graham LLP, Counsel to the Independent Review Panel." My first question is from whom is the Review Panel and its hired lawyers independent? Who paid the law firm for its hundreds, probably thousands of hours of research? I assume CBS paid them.

Keep in mind, it was the law firm that did the actual investigation. I have already communicated with one person who was contacted by a lawyer for the firm of Kirkpatrick & Lockart and told that they were carrying out the investigation's research. And, of course, Mr. Thornburgh is a senior member of Kirkpatrick & Lockhart Nicholson Graham LLP.

So the lawyers hired to independently investigate CBS have a lawyer/client relationship with CBS. Presumably, as a senior member of that firm, Independent Review Panel Member Richard Thornburgh also has CBS as a fiduciary client. Thus, unlike similarly named government independent investigations -- this one is paid for by, and carried out on behalf of, the target of the investigation.

The foregoing is not meant to impugn the integrity of Mr. Thornburgh. He is a man of proven integrity. But it is meant to try to determine what ethical obligations are required of him. If CBS is his legal client, then he has an ethical obligation to represent CBS's best interests -- and certainly to minimize any exposure CBS might have to legal liability for their conduct.
Thus, the report issued this week appears to be a very thorough and accurate rendition of facts that demonstrate the bad journalism practiced by CBS. This fulfills both his ethical obligations. He has been honest with his factual report, and, by being so, he has helped CBS appear to be coming clean with the public.

But where he has boldly sought and reported the objective facts, he has been cautious and inconclusive regarding the subjective characterizing of those facts.

So, for example, if CBS's own hired lawyer, Mr. Thornburgh, had found that the document in question was actually a fraudulent Department of Defense document, or that anyone at CBS subjectively believed the document was fraudulent before they used devices of interstate commerce to broadcast it, he might have exposed CBS to criminal and civil liability on both forging government documents and wire fraud charges.
The two greatest dangers to CBS coming out of the Sept. 8 broadcast were that it would be found that they: 1) knowingly broadcast fraudulent Defense Department documents, and 2) were motivated to do so because they are biased against George Bush and the Republican Party. And it was on those two vital points that the Thornburgh Report failed to come to a conclusion. The Report's concession of bad journalism merely conceded the undeniable. That fact had been apparent to most of the public and virtually all of the major news outlets by about Sept. 10. Conceding bad journalism was merely a belated bow to undeniable reality. They couldn't possibly have conceded less than they did.

But the "Independent Panel" provided one more service to CBS. It showed the report to CBS executives before it released it to the public. Thus CBS was given a public relations crises management expert's dream -- the extraordinarily valuable opportunity of simultaneously announcing the report's findings and CBS's corporate response to the findings -- which was to fire or ask for the resignation of key executives and producers below Dan Rather.
The crisis has been defused. The damage has been limited. Kirkpatrick & Lockhart Nicholson Graham LLP have earned every last penny of the undoubtedly huge legal/PR bill that is now, presumably, in the mail to CBS.

While the results of the Thornburgh/Boccardi review of the CBS Memogate scandal has generally received grudging acceptance from MSM and the blogosphere, a lot of folks--including those who broke the story, and ourselves--are quite unhappy about the pass given to CBS on politicial bias.

While former Attorney General and Governor Dick Thornburgh and former AP head Louis Boccardi seem to have sterling credentials, I think a fundamental flaw in the panel's investigation can be found on pages 2-3 of the report (after table of contents):

On September 22, 2004 CBS announced the appointment of an Independent Review examine the process by the which the September 8 segment was prepared and broadcast. [emphasis mine] The panel was also asked to examine the circumstances surrounding the public statements and news reports by CBS News after September 8 defending the Segment as well as to make any recommendations it deemed appropriate.
The key here is the panel was retained to look at the process. Motivation was not part of the scope of the inquiry. I think this was intentional and suited the interests of CBS and was not, ultimately, disagreeable with Thornburgh and Boccardi. For CBS, it assured that the result would not be an indictment of CBS overall but more likely the malfeasance of some limited number of staff. For the Panel, it had the advantage of directing the investigation to what physically happened and obviated the need to explore the more intricate web of motivation. It is notable, though perhaps not entirely surprising, that the Report devotes several paragraphs discussing possible bias but in the end takes a punt.

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