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Wednesday, September 15, 2004

Memo to Floyd Abrams re Dan Rather's disqualification

TO: Floyd Abrams
FROM: William J. Dyer (a/k/a Beldar)
RE: Disqualification

I hold you in the highest regard, sir — as a scholar and teacher of media and First Amendment law; as a wise counselor to your clients in their times of greatest trouble; as skillful and zealous advocate on behalf of your clients; and as an ethical and principled member of our common profession.

Tonight I watched a prominent employee of your long-time and my once-upon-a-time client CBS News interview a key witness in the Killian memos controversy, Ms. Marian Carr Knox.  With growing unease, I suddenly remembered Rule 3.7(a) of the American Bar Association's Model Rules of Professional Conduct, with which I know you are already familiar:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

Mr. Rather, of course, isn't a lawyer.  But it would blink reality to ignore the fact that he's become a key witness himself — and very probably the key witness — at least on the question of whether CBS News is complicit in a fraudulent effort to propagate forged documents. 

And yet there Mr. Rather was tonight, on national television, continuing to act as CBS News' principal advocate in defending itself.


As do we lawyers, journalists have a written code of ethics.  From the Society of Professional Journalist's Code of Ethics (boldface mine; hat-tip to my reader Sue Bob, who emailed me with this link):

Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.  Journalists should:

  • Test the accuracy of information from all sources and exercise care to avoid inadvertent error.
  • Deliberate distortion is never permissible....
  • Identify sources whenever feasible. The public is entitled to as much information as possible on sources' reliability.
  • Always question sources’ motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises....
  • Never distort the content of news photos or video....

Journalists are accountable to their readers, listeners, viewers and each other.  Journalists should:

  • Clarify and explain news coverage and invite dialogue with the public over journalistic conduct.
  • Encourage the public to voice grievances against the news media.
  • Admit mistakes and correct them promptly.
  • Expose unethical practices of journalists and the news media.
  • Abide by the same high standards to which they hold others.

Whether Mr. Rather and the CBS News personnel who worked with him on the "60 Minutes II" broadcast about the purported memos from Col. Killian followed these ethical practices is the precise issue now under national debate.  And just as as Rule 3.7(a) of the ABA's Model Rules of Professional Conduct is intended to protect public confidence in the integrity of the judicial system, so too does the SPJ's Code of Ethics counsel that a journalist who himself has become the story, not continue to cover the story:

Journalists should be free of obligation to any interest other than the public's right to know.  Journalists should:

  • Avoid conflicts of interest, real or perceived.
  • Remain free of associations and activities that may compromise integrity or damage credibility....
  • Disclose unavoidable conflicts....

The personal and professional conflicts of interest that Mr. Rather and his team have when they are  investigating and reporting on that controversy could not be more obvious or more palpable.

The disputed factual issues are not uncontested or trivial.  And CBS News itself has an ample supply of other qualified journalists to continue its investigation and reporting — both into the substance (if any) of the allegations about President Bush's service in the Texas Air National Guard, and into the controversy over CBS News' complicity in the promulgation of forged documents.  CBS News would suffer no hardship were it to simply seize Mr. Rather's and his teams files and computers — you'll take no offense, I'm sure, Mr. Abrams, when I remind you that lawyers have an ethical duty to prevent spoliation of evidence — and then either assign them to other duties or, better still, send them on a nice vacation.


If we were in a courtroom, you and I both know that any judge would disqualify Dan Rather from appearing as both an advocate and as a witness in a New York minute.

Your client is now on trial in the court of public opinion, Mr. Abrams.  Perhaps you've already given this advice and, for whatever reason, your client has chosen not to heed it.  But if you have not — can you stand by, and bless by your silence, CBS News' continued use of Mr. Rather as both its principal witness and  public advocate?  I know that I could not.

Posted by Beldar at 11:57 PM in Law (2006 & earlier), Mainstream Media, Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Memo to Floyd Abrams re Dan Rather's disqualification and sent a trackback ping are listed here:

» Clearly B. S. from Generation Why?

Tracked on Sep 16, 2004 11:14:51 AM

» Email to Non-management Directors of Viacom from Right on the Left Beach

Tracked on Sep 16, 2004 1:07:31 PM

» Trashing the Troops for Political Gain from Sue Bob's Diary

Tracked on Oct 26, 2004 8:17:20 PM


(1) taba made the following comment | Sep 16, 2004 12:49:32 AM | Permalink

soliciting false testimony?

Last week, Knox said she had no firsthand knowledge of Bush's time with the Texas Air National Guard, although she did recall a culture of special treatment for the sons of prominent people, such as Bush and others.


(2) jjohnson made the following comment | Sep 16, 2004 12:51:57 AM | Permalink

Four of the ten code of ethics highlighted? Why? Boldface all of them, as all were either willfully broken or incompetently ignored.

(3) Hmm made the following comment | Sep 16, 2004 1:12:49 AM | Permalink

This is off topic but I'm not sure of how to type your e-mail address and I'm not all that good at e-mailing anyway. There's an interesting discussion on Swift Vets.com re: Bill Burkett and a Kinko's in Abilene Texas and it sounds like they could use some lawyerly input. This story will probably gain strength on the 17th and I thought maybe you could be of some help. It's in the Geedunk & Scuttlebutt - Drudge page memos tracked to Texas Kinko's.

(4) palindrome made the following comment | Sep 16, 2004 1:38:01 AM | Permalink

Documents allegedly written by a deceased officer that raised questions about President Bush's service with the Texas Air National Guard bore markings showing they had been faxed to CBS News from a Kinko's copy shop in Abilene, Tex., according to another former Guard officer who was shown the records by the network.

There is only one Kinko's in Abilene, and it is 21 miles from the Baird, Tex., home of retired Texas National Guard officer Bill Burkett, who has been named by several news outlets as a possible source for the documents.


Does Burkett have his own computer, or could he have used the one at Kinko's?

(5) Mixie made the following comment | Sep 16, 2004 2:23:03 AM | Permalink

Its not clear from your post:

Is Dan Rather currently a client of Floyd Abrams?

Or is this a rhetorical post?

It certainly is a powerful post, and makes a lot of excellent points ...

(6) Beldar made the following comment | Sep 16, 2004 2:37:25 AM | Permalink

Mixie, thanks for the kind words. I don't know for a fact that CBS is consulting with Mr. Abrams on this matter. However, he's represented CBS on lots and lots of cases over the years (the example I linked to was a random choice among dozens of possible ones), including in the US Supreme Court, and he is the "number-one go-to guy" for any major media outlet if they can get him. I have a vague recollection, in fact, that when I represented CBS News 20+ years ago, CBS News had me submit my Fifth Circuit brief for him to vet before I filed it. (I have a much more clear recollection that he, or whoever from New York CBS had check my work, gave it a thumbs-up without changing a comma, which I found very gratifying.)

Unless Mr. Abrams had already been retained by another client with a potentially competing interest — perhaps USA Today? — I'd be surprised if CBS didn't consult with him on this sometime last week. But then again, that's presuming that someone at Black Rock is acting rationally — which may be a counterfactual presumption.

(7) HLM made the following comment | Sep 16, 2004 2:39:46 AM | Permalink

principle --> principal (2x)

"CBS News itself has ample other qualified journalists": the adjective "ample" does not work with people (journalists).

Nitpicks aside, journalists are not subject to the ABA Rules of Professional Conduct. Nor are these legal proceedings. Rather is neither a witness nor an advocate, just a journalist violating nearly every rule of his profession, i.e., journalism -- as you point out.

(8) Beldar made the following comment | Sep 16, 2004 2:49:04 AM | Permalink

HLM, I've blushingly corrected the errors you referenced, and thank you for catching them. And you're right, there's no mechanism for enforcement of ethical violations by journalists that is comparable to court disqualification of lawyers who violate our rules of ethics. But that ought not keep CBS News from effecting its own disqualification of Rather, or wise counsel from urging them to do so on grounds parallel to those which a court would use in disqualifying counsel.

(9) Syl made the following comment | Sep 16, 2004 4:46:30 AM | Permalink

Note Taba's post above.

The interview is very strange to me because it sounds like, even though Ms Knox didn't actually type the memos, she surely could have dictated them.

These memos either created false memories or she was the original source for whoever typed them up. It just doesn't seem likely to me that the forged memos and her answers followed only parallel lines through time.

It just seems so bizarre.

(10) Thomas Dinsmore made the following comment | Sep 16, 2004 7:23:06 AM | Permalink

You are absolutely right that CBS appears to be in violation of journalism's Code of Ethics. Unlike the legal profession, however, that Code of Ethics has no teeth. There is only one way to hold CBS accountable -- an organized boycott targeted at those who advertise on 60 Minutes II. Anything else is a distraction.

(11) Sue Bob made the following comment | Sep 16, 2004 7:42:48 AM | Permalink

Hi Beldar,

I copied you on an e-mail Monday night written to the Executive Director of the Society for Professional Journalists asking if they had any requirements for continuing education in ethics for their members to stay in good standing with the Society (which I doubt) and what his thoughts were about the fact none of the members were discussing Rathergate in the Forum they provide: http://www.spj.org/messageboard/

If I get a response--which I have not--I'll let you know.

Sue Bob

(12) steve made the following comment | Sep 16, 2004 8:51:30 AM | Permalink

As a journalist, Rather is not very good. As a prosecutor, he's even worse. Look at what he didn't ask the witness

(13) recon made the following comment | Sep 16, 2004 8:59:36 AM | Permalink

Anyone happen to notice that Col. Killian's son was interviewed by phone on Hannity and Colmes last night specifically to discuss the Knox interview?

He stated that she was a nice old lady who he had known since the age of 6, but on the subject of his father's opinion of GWB, she was simply, absolutely wrong.

Further, she was a POOL clerk/typist, not dedicated to Col. Killian but required to support any number of additional personnel in the Operations office.

Killian made the point in so many words that he felt it was despicable that his father, a deceased honorable man (Col. Killian), was being deliberately misrepresented for purely partisan purposes.

(14) kim made the following comment | Sep 16, 2004 9:56:26 AM | Permalink

Is the Cahill listed in the name or the firm regarding Abrams in any way related to Mary Beth Cahill?

(15) Lanny made the following comment | Sep 16, 2004 11:01:37 AM | Permalink

I am sure Kinko has a log of fax sent and I am sure they still kept record of the log. It's a matter of automatic record keeping unless someone knowingly destroys the record but then one will run into problem of explaining why there is a certain hole in a continuous stream of records.
On computer data remained after user have used, it's tougher to track because data could be overwritten by another users using the same computer. There is a slim possibilities that the data is still there (if the perpetrator using Kinko's computer) but it would required court order to seal all computers in that Kinko location.

(16) recon made the following comment | Sep 16, 2004 2:50:09 PM | Permalink

You'll love this recent entry at National Review Online:

MORE RE: MRS. KNOX [Jed Babbin]
Just spoke to another one of Dubya's squadron mates from the 111th. (I don't know how to do superscripts on e-mail). He passed on the Question of the Day for Mrs. Knox: You said that Mr. Bush got into the National Guard on the basis of preferential treatment "...because there were a lot of other boys in there the same way." Does that include your son, Ted, who joined the squadron in about 1972?
Posted at 01:47 PM

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