The CBS Three Won’t Slink Off; Hiring Lawyers

On Jan. 10, when the 224-page report on the investigation into CBS News’ 60 Minutes Wednesday memo scandal arrived, CBS president Leslie Moonves issued a statement dwelling on the failures of the employees involved in producing the disputed segment.

Prominent among the targets was executive producer Josh Howard. Mr. Howard, Mr. Moonves said, “did little to assert his role as the producer ultimately responsible for the broadcast and everything in it. This mistake dealt a tremendous blow to the credibility of 60 Minutes Wednesday and to CBS News in general.”

The producer, he wrote, had been asked to resign, and the network was “taking a variety of actions to put this crisis behind us.”

Five weeks later, the crisis is not yet behind Mr. Moonves. And far from resolving the problem of the network’s credibility, the independent report commissioned by CBS appears instead to be leading to a confrontation, with defenders of both the ousted CBS staffers involved in the debacle and top CBS management asserting two different truths from the same document.

Mr. Howard and two other ousted CBS staffers-his top deputy, Mary Murphy, and CBS News senior vice president Betsy West-haven’t resigned. And sources close to Mr. Howard said that before any resignation comes, the 23-year CBS News veteran is demanding that the network retract Mr. Moonves’ remarks, correct its official story line and ultimately clear his name.

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 Mr. Howard’s complaint about Mr. Moonves’ remarks could pose a serious problem for CBS. Sources close to Mr. Howard said he believes that the report-which was assembled by an outside team of former Attorney General Richard Thornburgh and former Associated Press head Louis Boccardi Jr.-contradicts Mr. Moonves’ statement about Mr. Howard’s share of the blame.

Mr. Howard also believes, those sources said, that the report itself excludes evidence that would implicate top management at CBS and restore Mr. Howard’s reputation in the television news business.

A senior official at CBS told NYTV that Mr. Howard’s claims had no basis in fact and that management had only acted on the findings of the report, which the company deemed thorough, accurate and independent.

Jay Goldberg, a civil litigator who has represented Donald Trump, said the idea of asking employees to resign “is really offered by the employer for protection for any breach of contract,” as “an inducement to the employee to walk away with his tail between his legs and put him in a position so he cannot sue.”

According to Mr. Goldberg, if a chief executive made public statements about employees that cannot be supported by facts-i.e., by the narrative of the Thornburgh report or, worse, other unreported material-it could open the company up to trouble.

“They were very foolish to go public with an attack on these people, because they lose their immunity to be sued for defamation,” Mr. Goldberg said. “Whereas if they had put these very same things in court paper, they could not be sued.”

Martin Garbus, a First Amendment lawyer, said that Mr. Moonves’ statement may well give Mr. Howard grounds for a defamation suit. “He has a claim,” said Mr. Garbus. “Anything that they say bad about him, and that impugns his reputation in the business in which he’s in-basically, they’re saying that he’s incompetent. That’s not opinion, that’s specifically stating. One way in which you protect yourself from libel is that you always say ‘in my opinion.’ But [Mr. Moonves] didn’t say it. He’s saying, ‘The producer did this, the producer did that.'”

On its own, CBS management has little motivation to publicly revisit the details of the Thornburgh report-let alone admit any errors in its own interpretation, which assigned little or no blame to Mr. Moonves, CBS News president Andrew Heyward and CBS executive vice president of communications Gil Schwartz.

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.

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?”

In the event of a lawsuit, Mr. Howard has told associates that he would like to see Mr. Moonves and Mr. Schwartz put under oath to talk about their own roles in the network’s stubborn, hapless defense of the flawed segment on President Bush’s National Guard service.

Mr. Howard has also indicated to colleagues that he would subpoena specific CBS documents, including the e-mails of top executives. That might shed further light on what members of management were saying to each other on Friday, Sept. 10, two days after the segment aired-a day that Mr. Heyward and Mr. Schwartz were making important decisions about CBS’s defense strategy.

That was also when Mr. Howard’s leadership role, judging by CBS’s own account, stopped being so important. The network held Mr. Howard, as executive producer, responsible for airing the flawed segment. But it apparently ignored him when he asked management to reconsider the strategy of categorical denial that led to 12 days of stonewalling.

On page 162, the report says that it was Mr. Howard who made the first concerted effort to address the possibility that the segment had been in error: At 4 :53 a.m., he sent Ms. West an e-mail recommending that CBS News acknowledge the possibility that it had been duped and that the documents could be a hoax.

That request was ignored by Ms. West, who ceded responsibility to Mr. Heyward-who apparently ceded responsibility to the network’s public-relations man, Mr. Schwartz. Mr. Schwartz reports directly to Mr. Moonves and is responsible for penning his press releases (including, presumably, the Jan. 10 statement with which Mr. Howard takes issue).

Mr. Howard told the panel that later that day, further evidence offered by a typewriting specialist had been an “‘unsettling event’ that shook his belief in the authenticity of the documents.” According to the report, both Ms. West and Mr. Heyward ignored his concerns and, in league with Mr. Moonves’ communications director, continued to defend the documents.

Given that timeline, a lawyer for Mr. Howard would have little trouble coming up with questions to put to CBS management:

· When CBS News president Andrew Heyward was informed of Mr. Howard’s doubts about the documents on the evening of Sept. 10, did he relay that judgment to his boss, Mr. Moonves?

· If Mr. Moonves was informed on Sept. 10 that the executive producer no longer believed in the authenticity of the memos, why did the network continue to categorically defend them?

· If Mr. Moonves didn’t learn of Mr. Howard’s doubts until he read the Thornburgh report, did he ask Mr. Schwartz or Mr. Heyward why he hadn’t been informed?

· When he read Mr. Howard’s expressions of doubt, did Mr. Moonves still feel justified in publicly charging that Mr. Howard failed to execute his duties as executive producer?

Neither Mr. Moonves nor Mr. Schwartz was willing to talk for this article. But a senior CBS official, who declined to be named, felt compelled to defend the management against any inquiry that Mr. Howard and his legal team might bring against the company.

Contrary to what Mr. Howard or his associates were saying, according to the CBS source, Mr. Howard had not expressed doubts about the documents to anyone but Ms. West-who had also been asked to resign.

“As reflected in the findings of the independent panel, Josh Howard did little to inform management of doubts he had about the documents, certainly not prior to the broadcast,” said the CBS official. “The sole indication to the contrary in this regard is an e-mail Mr. Howard sent to Betsy West in the middle of the night, two days after the broadcast, early on Sept. 10. No one else at CBS News was copied on that e-mail or Ms. West’s response to it.

“In the conference call on the morning of Sept. 10, Mr. Howard was virtually silent,” continued the source. “Later in the day, however, at a staff meeting of executive producers and department heads, Mr. Howard said to the group that he was standing by the story, a fact of which the independent panel was aware.”

Therefore, said the senior CBS person, no action by management could have been expected, given that Mr. Howard’s doubts either never made it to their ears (or e-mail in-boxes) through Ms. West or were not actually expressed with enough force to make them count. (The report, however, does not support the statement that Mr. Howard was “virtually silent” in the conference call; in fact, he’s not characterized in any way.)

“If we had known of Mr. Howard’s ostensible doubts, that would indeed have helped to shape CBS’s response,” said the source. “In spite of revisionist history on the question, we did not.”

The CBS person defended the network’s foot-dragging after the report was aired, saying that “news organizations, including those under fire, quite often defend stories that they believe in, based on statements made by reporters or producers, without the benefit of hindsight or subsequent repositioning by those involved in the issue.”

The senior CBS employee also defended management on the issue of whether Mr. Howard’s concerns after talking to the typewriter expert even later on Sept. 10 constituted a warning for Mr. Heyward. In other words, any warnings that Mr. Howard may have expressed never reached beyond Ms. West, who had also been asked to resign as a result of that and other sins.

“Except for one inconclusive conversation regarding a single typewriter analyst, there was nothing in the panel’s report to indicate that Mr. Howard had raised any substantive issues with Mr. Heyward,” the source said. “In fact, there were many conference calls and e-mails flying back and forth during those days. Mr. Howard had many other opportunities to express reservations that he might have had, and did not-a fact that is pointed out in many instances in the report, whose findings are generally critical, rather than exculpatory, of Mr. Howard.”

Finally, the source said, the report-from which CBS management drew all of its conclusions-was an exhaustive, independent account that CBS felt responsible to act upon. The CBS official found Mr. Howard’s claims of innocence dubious.

“Mr. Howard’s so-called ‘expressions of doubt’ gain in force and volume as the story is retold from his vantage point,” the source said.

The report concludes that in the run-up to the show, producer Mary Mapes steamrolled her immediate supervisors-including and especially Mr. Howard-while making it difficult or impossible to vet the source of the documents. Mr. Howard had never before worked with Ms. Mapes, who was said to have an outsized and intimidating reputation following her exposé on the Abu Ghraib torture scandal. On top of that, it was Mr. Howard’s first major story for the program, and top management (Mr. Heyward and Ms. West) were involved in an unusually hands-on way because it involved the President of the United States. As the report shows, CBS president Andrew Heyward green-lighted the piece the day before it aired and screened it one hour in advance.

Even so-and even among those who support Mr. Howard at CBS News-many said it was hard to see how Mr. Howard would escape any culpability. Few dispute that Mr. Howard could have stopped the report from airing had he executed his full powers.

In his own defense in the Thornburgh report, Mr. Howard does maintain that he tried: On page 94, Mary Mapes and Mr. Howard disagree on who thought it best to postpone the segment. Mr. Howard maintained that he approached Ms. Mapes and anchor Dan Rather about airing it on the following Sunday edition of 60 Minutes, “but that it was they who declined.”

A spokesman for CBS News declined to comment on Mr. Howard’s claims or the standoff with the not-yet-ex-employees.

There is at least one phantom deadline that could motivate CBS to resolve the situation with Mr. Howard and the rest: anchor Dan Rather’s departure from the CBS Evening News. A producer at CBS said that a special was being assembled to celebrate Mr. Rather’s career, and it could be difficult for Mr. Rather to promote the show, given that he would likely be asked questions by reporters about the unresolved issues surrounding the scandal. The special is slated to appear on March 9 on the program that started it all: 60 Minutes Wednesday.

-additional reporting by Anna Schneider-Mayerson