Powerline Storm over CBS Report & Bias

Powerline's Deacon is featured for his Daily Standard column on Inferring the Obvious. While Deacon's offering is reasonable, it has an inferred assumption that oversimplifies: that Thornburgh is an independent prosecutor. From a lawyering point of view, Thornburgh has a tight-wire act with CBS. Tony Blankley (a former prosecutor) raised this point in Damage Control at Black Rock. Deacon's analysis that Thornburgh could infer a political bias from the CBS conduct but didn't, misses the lawyering point -- Thornburgh's client is CBS and he has continuing duties to them. This is not sinister, just problematic from a lawyering point of view.

I can only speculate but it appears that Thornburgh insisted on outing the concrete facts and let readers draw their own conclusions -- and in that context the report is particularly damning. Thornburgh can't officially conclude that there was bias and he can't officially conclude the memos were obvious forgeries because his firm is an agent of CBS and their announced conclusions are available as admissions in the following potential litigations: a) criminal prosecution for falsifying government records, b) defamation suits, and c) a pending case before the Federal Election Commission for wrongful coordination (hat tip Little Green Footballs). An independent prosecutor would owe no duty to CBS and have no concerns in this matter -- but the ethical responsibilities of a private lawyer in this investigation context make the disclosure process very dicey. You want to clear the air on the memos to help your client from a public relations standpoint, but you don't want to harm your client by helping adversaries in potential litigations.

So, how do we get an adjudication of the bias question? I doubt the FEC will touch it. I'm certain that President Bush will not sue for defamation, and I'm fairly certain his Justice Department will not indict anyone for falsifying government records. The only possibility I see is a defamation suit by Col. Kilian's estate against CBS. Normally, the press is exempt from liability for defamation unless the plaintiff proves malicious intent. Well, that is exactly the question Deacon wants answered, the one of intent. And in a civil suit context, the standard is not proof beyond a reasonable doubt, it is the Rather standard: by a proponderance of the evidence.

I bet CBS would pay a lot to not litigate that claim, which leads to ThoughtsOnline's piece on the merits of such a pursuit. The legacy of Edward R. Murrow and Walter Cronkite is at stake. MSM desparately wants to maintain the illusion that they are the epitomy of objectivity and the standard bearers of virtuous reporting. While many of us believe MSM has been stacking the deck and fudging on objectivity for years, a formal conclusion of bias renders their mission a fraud and has McCain Feingold ramifications (are news pieces "news" or disguised attack ads?).

My hunch is that more and more common citizens are ready to say the MSM emperor has no clothes; but rather than abdicate or be deposed, the emperor is going to have a makeover. News producers are frightened by the prospect of being blog swarmed, and they are going to be much more buttoned up on their fact checking. The stories they fail to carry and their balance will still be problems, but the role of blogs, Drudge, Daily Standard, Town Hall, Fox News will keep chipping away at the gap between what gets reported and what needs to be reported.