January 14, 2005

Rathergate: Hackworth's Credibility Blown, Thornburgh's Weak Conclusions Explained

Michelle Malkin notices that that the Thornburgh Report on Rathergate has details of how Mary Mapes used David Hackworth, noted retired colonel and web person, as a consultant on the Rathergate story. This is a big blow to Hackworth's credibility. He assured Mapes that the documents were genuine (not "any doubt in his mind"), and made other confident, extremely strong statements about military procedures ("then-Lieutenant Bush was 'AWOL' and that a person would have to reach that conclusion when reviewing the documents 'unless you’re the village idiot.' ") Parts of this interview were in the first draft of the 60 Minutes Story, but were cut before the final version.

The blogosphere has commented at length on how the Thornburgh Report, while clearly and elaborately laying out the dishonesty and managerial incompetence of various executives at CBS comes to two surprising conclusions that are contrary to all its evidence: (1) there is not convincing evidence that the documents are genuine, and (2) there is not convincing evidence that CBS was biased-- haste to get a story out quickly is enough to explain the story.

As everybody knows, this is silly. (1) Does anybody really believe the documents might be genuine? No. Certainly you could not find a single expert witness to say so. (2) Does anybody really believe that CBS is not biased against Bush? Maybe some liberals do not believe that, but the evidence is overwhelming. In fact, in both cases, I think the evidence is "beyond a reasonable doubt," the jury standard.

There, however, may lie the key to the Thornburgh Report. Could a libel case be brought against CBS? First, there must be a false and hurtful statement. Clearly there was. But that is not enough. If it is a public figure that is libelled, the case must also be proved (by a preponderance of evidence, I would guess) that the liar is heavily to blame for saying something false and hurtful-- that it is more than just negligence. I forget the exact standard. It may be that the plaintiff needs to prove that the lie was deliberate and intentional, or it may be he just needs to show that it was the result of reckless disregard for the facts.

Now look back at conclusions (1) and (2) of the Thornburgh Report. If it had come to the opposite conclusions, and said that the documents were indeed false and that CBS aired them because of political bias, that would be potent evidence in court in a libel suit, because Thornburgh is acting as CBS's lawyer here. So, as a good lawyer, Thornburgh is being discreet.

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September 22, 2004

Rathergate, Watergate, and Impeachment

Some time back Eugene Volokh had a post on VC in which he discussed whether the CBS forgeries were illegal. He found some obscure laws that might apply, but pretty much concluded that they were not illegal, and would not have been even if CBS had typed them up themselves.

The extent to which the Kerry campaign is involved in this is still being discovered, but let's turn the situation into a hypothetical for discussion.

Bushgate: President Bush, believing that rival John Kerry aided the Communists in 1970, tells staffers to forge documents as proof, and to leak them to CBS News. CBS News reports them as genuine, but immediately bloggers prove that the documents are forgeries, and within a week Bush's involvement also becomes known....

...Compare this with two earlier episodes.

Watergate. President Nixon's re-election decide to break into Democratic Party offices in the Watergate building to bug phones, but are immediately caught. President Nixon approves of plans to cover up the involvement of top campaign officials in the burglary.

Monicagate. President Clinton, under investigation for financial irregularities, lies under oath when asked about his sexual liason with staffer Monica Lewinsky.

In Bushgate, no law has been violated, unlike in Watergate (burglary, obstruction of justice) or Monicagate (perjury). Yet which is the most serious? Bushgate.

The Watergate burglary was a minor crime, and ordinarily the burglars would have received a light punishment-- perhaps none at all. The judge was severe because he thought there were higher-ups involved, and higher-ups did try to conceal who was involved. Impeachment charges were brought against Nixon not because the burglary or obstruction of justice was harmful in itself (or would have been even if successful), but because a President who obstructs justice in a minor case like this lacks moral legitimacy and would probably commit more serious crimes if given the opportunity.

Similarly, President Clinton's perjury was a minor crime, but a crime nonetheless, committed for personal advantage, and revealing a disregard for the law improper in a President.

In Bushgate, I think it would be appropriate to impeach President Bush for the forgeries. He would not have shown disregard for the law-- that kind of forgery is not a crime-- but he would have shown low enough moral character that we would not want him as President. Moreover, unlike in Watergate and Monicagate, the forgery would be important in itself, a clear threat to honest elections.

This is one good argument against the peculiar notion floated during the Clinton Impeachment that a President should only be impeached if he has committed a crime, and a serious crime at that. No-- impeachment is a procedure for quickly getting rid of Presidents who have shown themselves unfit for office,especially if their unfitness consists in trying to use unfair means to expand their own power. This was also why Andrew Johnson should have been impeached: it was not that he had violated an act of Congress concerning the firing of Cabinet officers, but that he had tried to thwart the legislative branch's laws about Southern Reconstruction wherever he could.

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September 16, 2004

A Demand-Side Theory of Rathergate; CBS Affiliates

Rathergate has some interesting economics to it. Stanley Kurtz has a demand-side theory for why CBS is refusing to admit defeat:...

...even as complaints about liberal media bias escalated, the mainstream media was bound to become more liberal, not less liberal -- because that's what was happening to its audience. What all this means is that, given its audience, CBS News is no longer concerned about preserving it reputation for fairness. On the contrary, CBS now wants and needs to preserve its reputation for liberalism.

In equilibrium, only closedminded liberals listen to CBS, and so CBS serves up news that will please them, with truth being of minor concern. It is a little like a tabloid that regularly has stories of alien abductions. The tabloid's readers don't care about accuracy-- that's a silly thing to ask of a tabloid-- they want good stories.

But product doesn't quite match consumer yet for CBS. Instapundit points to a National Review article about CBS affiliates.

Ken Charles, the program director of KPRC radio in Houston, told the Kerry Spot Wednesday evening that he has notified CBS Radio news that he will be switching to Fox News feed for their Friday evening news, instead of using the Dan Rather-anchored CBS feed.

"Dan has been doing the Friday 4 P.M. slot for about three or four years, and this is the first time Dan Rather has been the story," Charles said. "I have a problem with my news people being the story."

Charles said that his station is under contract with CBS, and that the move is unlikely to have a financial impact for CBS. The public-relations damage, however, could be significant.

"We're the number-seven market in the nation, and I would hope it would send a message to them about how serious this is," Charles said. "I announced at 5:10, and since then (about an hour and a half) we've gotten 150 e-mails from listeners, all supportive.


Another official at a different affiliate station wrote to a concerned viewer that his station is covering the matter locally, and talking to its own experts. He called the CBS report, "not acceptable at all."

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