Tuesday, January 11, 2005

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 which did the actual investigation. I have already communicated with one person who was contacted by a lawyer for the firm of Kirkpatrick & Lockhart who was 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 his ethical obligations 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.

I would assume that as a former attorney general and public man, he would also feel an ethical obligation not to report facts to the public other than those he believed to be correct and in fair context. While those two sets of ethical imperatives may sometimes be hard to manage simultaneously, from a first reading of the report it appears to me that he has upheld both of those ethical obligations.

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 Thornburgh/Boccardi Report makes no such conclusion, although it does present facts that might lead a reasonable person to reach such a conclusion.

Neither did the report conclude that political motivations may have played a role in the bad journalism. Although, once again, the report had a whole section meticulously itemizing evidence of political or anti-Bush motivation. (This section, however, while accurate, was very far from exhaustive. For instance, no mention was made of the fact that Dan Rather had, in the past, spoken at a Texas Democratic Party fundraiser. No effort was made to do content analysis of Mr. Rather’s news casts over the years to measure party bias — an established technique used in academe on exactly such research projects.)

The two greatest dangers to CBS coming out of the September 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 September 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 key executives and producers below Mr. Rather.

Thus, there was no headline this week stating that CBS admits documents were a fraud or caused by partisan bias. Instead, the headlines in papers as diverse as The New York Times, The Washington Times and The Washington Post were all the same: CBS fires 4. That headline was followed by the finding that CBS’s journalistic standards had been deficient. As they say — that’s old news.

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.

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