Wednesday, January 12, 2005

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.

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.

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.

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