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Thoughts about the Josh Howard Story

A few thoughts on and clips from the NY Observer piece about Josh Howard potentially suing CBS.

Mr. Howard, those sources said, has hired a lawyer to develop a breach-of-contract suit against the network. Ms. Murphy and Ms. West have likewise hired litigators, according to associates of theirs, and all three remain CBS employees and collect weekly salaries from the company that asked them to tender their resignations.

None would agree to participate in this article.

Legally, CBS and the ousted staffers are in an unusual stalemate: The network cannot be sued for breach of contract unless it actually fires them. Theoretically, the network could refuse to offer an apology or correct statements and simply drag its feet, continuing to write paychecks to the trio until their contracts expire. (Neither side would discuss how long the contracts are scheduled to last.)

But CBS could always cancel 60 Min Wednesday, it's been speculated they would many times even before this. That would end the whole issue. I've not seen their contracts but I'm sure if the show you're working on gets cancelled you're out of a job.

And this jumped off the page:

There are also questions remaining about the way the report itself was assembled. No one at CBS has taken credit for determining the format of the investigation , which excluded recording devices or transcripts of interviews with the 66 people who were involved in the segment. No written record exists of Mr. Howard, Ms. Murphy, Ms. West or Ms. Mapes telling their side of the story to the investigative panel. None were allowed to take notes or voluntarily speak under oath.

This is poorly worded, so I'm not sure what it means. Did the panel not have transcriptions or just not the people being interviewed? Taken as written, it sounds like the panel interviewed 66 people about thousands of details with a precise emphasis on a timeline but did not have a transcript from which to work... I find that implausible.

If there is no transcript at all, then the panel should be sued! (I have a gut feeling this might be important as this story unfolds)

All things considered, unless the facts have been greatly mischaracterized, I'm not sure Howard has much of a case... It sounds like he was way too timid before the story ran as well as after. For his part, Howard maintains there was exculpatory information excluded from the panel's report. It is things like that claim that will have bloggers all over this one.

Comments (13)

The whole "no-records-of-an... (Below threshold)
Steve L.:

The whole "no-records-of-any-kind" deal during the "investigation" smelled funny to me from the beginning. What kind of commission does its job and has no tagible record of its proceedings?

Apparently, a commission charged with doing everything it can to protect the phony-baloney jobs of the big guys.

- They've circled the wagon... (Below threshold)

- They've circled the wagons and are in "stonewall mode" hoping that cancellation of the show will cement over the whole mess. If the CBS legal team tries that stunt to get out from under contractual commitments and a public apology ( one thing that will never happen even if it ends up in litigation ), that move will insure the fearsome trio will press the lawsuit....

- Mapes has either been silenced with a fat payoff or she's waiting in the woodwork to see what happens. I'm betting she has copies of everything...

- The only way any of the truth will come to light is through a senate hearing into "political tampering", a long shot at best since Bush won and no one has the stomach to actually call the MSM out on that high a charge. If proven it would mean sure jail time for sombody, not to mention destroying any credibility that CBS has remaining. So its just not likely to happen. In addition its doubtful that any of the incriminating materials remained within days of the firings and resignation requests. Willful destruction would carry a much lessor punishment than high crimes so they have every reason to do it. I'm betting the only reason any damning records are still around is Mapes or if one of the lower level litigants, or someone not even mentioned in connection with the case have hung on to CYA evidence, something that CBS must be sweating bullets over right now....

*Hey, yeah, but, but, bu... (Below threshold)

*Hey, yeah, but, but, but what about, you know, Gannon?!*


If this were as simple as C... (Below threshold)

If this were as simple as CBS makes it out to be Mr. Howard and company would already be out in the street. The fact that their parking passes still work tell me there is much more to the story.

Clearly Howard has the goods on Rather and probably Moonves as well. Let's hope his price is more than Les and company are willing to pay.

CBS could dodge the bullet ... (Below threshold)
tee bee:

CBS could dodge the bullet by paying their contracts and telling them their work is finished, with or without cancellation of the show. I think the "favors" they passed out - Rather's "retirement" to 60 Minutes and the "resignation request" of Howard and others instead of firing them - will come back to haunt them. CBS appears to have made a severe miscalculation in its game of CYA. Why they ever thought anyone would be happy to be asked to resign rather than being fired is a mystery; there's righteous indignation and legal recourse in the latter, but only cold cowardace, marginal face-saving and a long job hunt in the former. And if you're going to offer someone their sword if they promise to fall on it, you do it in a back room, not in a long-awaited and roundly read public document.

Cancelling "60 Minutes Wedn... (Below threshold)

Cancelling "60 Minutes Wednesday" probably has no effect whatsoever on their contracts. Unlike programming prepared by outside producers or even by the network's own entertainment production entity, news programming that relies upon a network's news division for the show's management team would not normally tie employment status (which is with the network news division) with the duties carried out on that particular show. In other words, the staff on news programming is to a large degree usually assembled from existing news division employees. These employees are reassigned, not hired only for a particular program. For example, when CBS cancelled their news magazine "West 57th" in 1989, Steve Kroft and Meredith Viera were transferred to "60 Minutes".

So the contracts in question probably lack any connection between continued employment and continued production on the program to which these employees are currently assigned.

Rathergate story like Rathe... (Below threshold)
Jo macDougal:

Rathergate story like Rathergate was a lie.

A word of caution on your s... (Below threshold)

A word of caution on your suspicion about a lack of transcript or other "record" of the interviews.

I am a lawyer who has participated in many internal corporate investigations. I must tell you that no investigation in which I have participated has included witness interviews that are transcribed or under oath. With the caveats that (a) I have never worked for CBS, and (b) I have never participated in an internal investigation in which the resulting report was made publicly available, here is how the process works.

Typically, an employee witness is called into a conference room, with several lawyers present, one to lead the questioning, and one or more to take detailed notes. There is no videographer or stenographer present, and no tape recording made, although the lawyers tend to take detailed notes.

The employee witness is typically told in a general way that the attorneys are conducting an investigation into subject matter x authorized by the Board or Audit Committee or head of HR (or whoever has authorized it). The witness is told that he/she is obligated to cooperate and to answer all questions fully and truthfully under the corporate Code of Conduct or other applicable terms of employment. Failure to cooperate may result in sanctions up to and including termination. The attorneys typically explain that they are acting for the corporation and that they not the attorneys for the witness. If the witness asks whether he/she may have a lawyer present, he is told he may not; while the employee is free to consult an attorney, an employee has no right to have an attorney attend an internal interview or other due process rights in such an investigation. Similarly, if an employee witness asks whether he/she may tape record the interview, the answer is "no". The witness is cautioned (and usually reminded at the end as well) that he/she may not discuss the interview with anyone (other than her attorney, if she decided to retain one), and in particular not with other employees.

The interview itself then commences. The lead lawyer asks questions; the interviewee answers them. The questions may be general at times and the tone laid back ("What happened next?"). The questions may even be softballs. At other times, the questioning may become more aggressive, particularly if the witness's answers appear to be contradicted by the written record ("If you weren't suspicious about whether the document was a forgery, why did you send Ms. Y this email asking her to double check?"). Typically, at some point toward the end, the attorneys will ask whether there is anything else the witness wants to say or bring to their attention. In one extreme case, I concluded an interview by telling the witness that her story was, frankly, unbelievable, and telling her why I though so. What, if anything, could she tell me that would change my mind?

After the interview, the attorneys typically use their detailed notes to compose a more formal memorandum memorializing the interview. This is not a word-for-word transcript, except, perhaps, for key phrases. For example (and totally hypothetically), the memorandum might state: "Witness X asserted that she had no reason to doubt to that the document was a forgery. When we showed her the February 16 email, she claimed that it was just 'routine follow-up.'"

The memorandum may or may not contain the attorneys' subjective impressions ("Witness X appeared to be flustered when we showed her the February 16 email and claimed that it was 'routine follow-up'"). It is probably more typical to omit such impressions, although I have included them in "he said/she said" situations such as sexual harrassment investigations where evaluation of credibility is key, and demeanor is key to credibility.

These memoranda, and the underlying attorneys' notes, are created with the intention that they will be privileged. They routinely bear a legend making clear that the attorneys (and their corporate client) consider the materials "privileged and confidential."

I hope this helps.

CBS claims there are no tra... (Below threshold)

CBS claims there are no transcripts, etc because they want deniability that such exists if they are subpoenaed for a criminal investigation.

I suppose it also may have been a defensive preparation in case any of those asked to leave decided to fight it out.

The New York Observer... (Below threshold)

The New York Observer reports:

In a recent article in The New York Law Journal, James C. Goodale, the former vice chairman of The New York Times, called the CBS investigation "a flawed report. It should not be swallowed hook, line and sinker."

He added: "Surprisingly, the report is unable to conclude whether the documents are forgeries or not. If the documents are not forgeries, why is the panel writing the report?"

Goodale’s question goes to the crux of the problem with CBS. If CBS has never admitted that the Killian Memos are fake, then how could CBS president Leslie Moonves accuse Howard, Murphy and West of doing something wrong?

Elektratig and D.David - sp... (Below threshold)

Elektratig and D.David - spot on!

Here is a link to lawyer BummerDietz's work at his site, scyllacharybdis.blogspot.com:



"…Remember, Thornburgh's law firm is "expert" in preventing the raw data of their investigation from being released to third parties. As I've previously written:

Former U.S. Attorney General Richard Thornburgh is an attorney with Kirkpatrick & Lockhart ("K&L"). K&L has a practice specialty involving "internal investigations."

K&L's primary objective in the investigation is "to prevent criminal charges from being filed" against CBS..... K&L's second objective is to ensure that CBS and its executives are "acquitted of any charges."

To prevent indictment and assure an acquittal of CBS, K&L's expertise is to conduct the investigation "to maximize the ability to assert attorney-client and work product privileges over the materials compiled in any subsequent criminal or civil proceeding." …."


BummerDietz has done much research and writing on the whole CBS matter from a legal standpoint. See his "Thornburgh to Withhold CBS Report To Prevent Criminal Prosecution of CBS Execs," dated 12/18/04, here, also Memogate">http://scyllacharybdis.blogspot.com/2004/12/memogate-legal-analysis-greatest-hits.html">Memogate Legal Analysis, dated 12/11/04 and rest of his Archives before and since those dates.

He's the one who alerted the Texas authorities and tried to get them to start an investigation. He's also the one who realized the legal significance of the "personal" files tag which may have been added pre-airing by CBS legal dept. Whoever came up with "personal" most likely knew the memos were forgeries/fakes.

Goodale’s question goes ... (Below threshold)

Goodale’s question goes to the crux of the problem with CBS. If CBS has never admitted that the Killian Memos are fake, then how could CBS president Leslie Moonves accuse Howard, Murphy and West of doing something wrong?

Yes. But it gers worse:

How and from whom did CBS obtain the documents in the first place?

Why didn't CBS management turn them over to the government immediatly since they had to be obtained illegally

Where are the originals now and if they never really existed what was the basis for the whole report in the first place?

- This situation is very close to the perfect storm for CBS. Lets say, just for the sake of argument, that some "kernal" data came into their hands that was proof positive of the whole theme. Even that had to be obtained illegally without proper governmental release. No matter which way they turn, they're screwed if it ever gets into Congress or a court....

Clown alert , sorry, I mean... (Below threshold)

Clown alert , sorry, I mean Clone Alert!
(Remember Prof. Hailey?)

There's another professor popping up defending himself over CBSgate over at Bob Kohn's blog after appearing as a guest with Bob Kohn on Scarborough's MSNBC show on 2/16/05.

It's déjà vu all over again – the "Fake but Accurate" defense by Prof. Paul Levinson in the first segment of the show. Then VandenHeuvel of "The Nation" echoed the same thing in a later segment.






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