Dan Rather says that politics affected an investigation into a CBS segment.B y JACQUES STEINBERG Published: November 16, 2008
When Dan Rather filed suit against CBS 14 months ago - claiming, among other things, that his former employer had commissioned a politically biased investigation into his work on a "60 Minutes" segment about President Bush's National Guard service - the network predicted the quick and favorable dismissal of the case, which it derided as "old news."
So far, Mr. Rather has spent more than $2 million of his own money on the suit. And according to documents filed recently in court, he may be getting something for his money.
Using tools unavailable to him as a reporter - including the power of subpoena and the threat of punishment against witnesses who lie under oath - he has unearthed evidence that would seem to support his assertion that CBS intended its investigation, at least in part, to quell Republican criticism of the network.
Among the materials that money has shaken free for Mr. Rather are internal CBS memorandums turned over to his lawyers, showing that network executives used Republican operatives to vet the names of potential members of a panel that had been billed as independent and charged with investigating the "60 Minutes" segment.
Mr. Rather attracted the ire of Republican bloggers and talk radio in particular after the segment, which was broadcast on a weekday edition of "60 Minutes" in September 2004. It purported to have unearthed evidence about favorable treatment extended to President Bush during his Vietnam-era service in the Texas Air National Guard.
The network eventually responded to its critics by saying it could no longer vouch for the authenticity of the documents on which the report had been based. The network also commissioned an investigation led by Dick Thornburgh, a prominent Republican and former United States attorney general, and Louis D. Boccardi, a former chief executive of The Associated Press, not so much to verify the documents, but to determine how the segment got on the air.
In its final report, which was issued in January 2005, the panel cited a breakdown in standards by CBS in rushing the Bush segment onto the air but found no evidence of liberal bias in CBS's preparation of the segment.
By the time the panel's report was issued, Mr. Rather had already announced that, under pressure, he would step down as anchor of "CBS Evening News." But he did not leave the network until more than a year later.
In September 2007, he filed the $70 million lawsuit charging that CBS had violated his contract and that the investigation was compromised. A New York State Supreme Court judge has since jettisoned parts of the suit, including Mr. Rather's contention that CBS had engaged in fraud.
But the judge has permitted Mr. Rather to go forward with the core of his case, including his argument that CBS had limited his work as a correspondent after he left the anchor desk and, in the process, damaged his reputation. The case is on track to go to trial soon, possibly early in the new year.
Those who have worked on the case with Mr. Rather, 77, say he has approached it with the zeal of a correspondent trying to report out a "60 Minutes" segment about himself, burying himself in deposition transcripts late into the night and providing his lawyers with road maps of leads he thinks they should pursue. He rarely misses a court hearing on the case.
"I want to go the distance," Mr. Rather said recently over a lunch of chili and cornbread at a barbecue restaurant. "Like any good reporter, I want to get as many as facts as possible; I want to get to the bottom of the story."
Some of the documents unearthed by his investigation include notes taken at the time by Linda Mason, a vice president of CBS News. According to her notes, one potential panel member, Warren Rudman, a former Republican senator from New Hampshire, was deemed a less-than-ideal candidate over fears by some that he would not "mollify the right."
Meanwhile, Mr. Thornburgh, who served as attorney general for both Ronald Reagan and George H. W. Bush, was named a panelist by CBS, but only after a CBS lobbyist "did some other testing," in which she was told, according to Ms. Mason's notes, "T comes back with high marks from G.O.P."
Another memorandum turned over to Mr. Rather's lawyers by CBS was a long typed list of conservative commentators apparently receiving some preliminary consideration as panel members, including Rush Limbaugh, Matt Drudge, Ann Coulter and Pat Buchanan. At the bottom of that list, someone had scribbled "Roger Ailes," the founder of Fox News.
Asked about the assembly of the panel in a sworn deposition, Andrew Heyward, the former president of CBS News, acknowledged that he had wanted at least one member to sit well with conservatives: "CBS News, fairly or unfairly, had a reputation for liberal bias," and "the harshest scrutiny was obviously going to come from the right."O ther documents, meanwhile, suggest that Ms. Mason, who reported to Mr. Heyward, was getting updates from panel investigators on some of their findings, at a point when CBS News was telling outsiders that the network was staying out of the investigation.
Jim Quinn, a lawyer at Weil, Gotshal & Manges who is representing CBS, said in an interview that whatever Mr. Rather had learned in the discovery process would not help his case. He said it was the network that had gained the most ground, especially in persuading the judge to dismiss five of the seven original claims by Mr. Rather, as well any claims against individual CBS executives. CBS is believed to be spending about as much on its defense as Mr. Rather is spending.
Mr. Quinn also said CBS would consider asking for a summary dismissal of the case, once the process of discovery had concluded. "Either on summary judgment or at trial, we feel very comfortable we'll succeed," he said. "We feel the case is meritless."
Still, Chaim B. Book, a Manhattan employment lawyer who is not connected to the case, said that Mr. Rather and his team had already reached something of a milestone.
"Getting through discovery and getting a case significantly closer to trial, in and of itself, is an achievement," Mr. Book said. "Discovery, besides being expensive and time-consuming, can lead to embarrassing disclosures."
One of Mr. Rather's initial goals was to compel depositions of many of his former bosses and colleagues under oath. Thus far, in addition to Mr. Heyward and Ms. Mason, his lawyers have questioned Leslie Moonves, the chief executive of CBS; Gil Schwartz, executive vice president of communications for CBS; Sandra Genelius, a former CBS News spokeswoman; and Michael J. Missal, who helped oversee the panel report on behalf of Mr. Thornburgh.
Each could conceivably be called to testify in open court, as could Sumner M. Redstone, executive chairman of CBS. (Mr. Rather's lawyers have expressed interest in deposing Mr. Redstone, a request the judge, Ira Gammerman, has neither granted nor ruled out.)
The day after Election Day, the two sides squared off in Judge Gammerman's courtroom in State Supreme Court in Manhattan over a request by Mr. Rather's lawyers, led by Martin R. Gold of Sonnenschein Nath & Rosenthal, to gain access to several thousand documents that were used by the investigative panel to compile its report, including notes from interviews and e-mail messages from top executives.
Lawyers representing the panel have resisted Mr. Rather's request for documents, citing attorney-client privilege. At the same time, CBS suggested in its latest filing that Mr. Rather was engaging "in nothing more than an intrusive and expensive fishing expedition."
In court in July, Judge Gammerman spoke openly about the extraordinary attention that a Rather-versus-CBS trial would attract and reassured the lawyers that, having previously tried cases involving Woody Allen and Rosie O'Donnell, he could promise both sides a fair hearing.
"And I tried a case involving Joan Collins," he said, adding that, despite intense publicity, "the jury was able to reach what was a reasonable decision."