BeldarBlog

NY appellate court throws Gunga Dan vs. CBS lawsuit out of court in its entirety

Just before last Christmas, in my most recent post about Dan Rather's much-publicized lawsuit against CBS, I explained that CBS' lead lawyer — my former law partner Jim Quinn — was operating under an unfortunate set of circumstances, as a result of which it was virtually certain that the case wouldn't shed any further or more definitive light on the Ra^thergate saga:

The problem ... — as I noted at length when Rather first filed his case, here ["The complaint that Sonnenschein's New York office has filed on Dan Rather's behalf ... is a nicely buffed and polished piece of garbage"] and here ["individual decision-makers within CBS may have overwhelming vested interests in ensuring that the facts are not thoroughly probed in court"] — is that Quinn's hands are effectively tied by the fact that his client was spectacularly gutless in its dealings with the psychotic prima donna who for so long occupied its anchor chair. Quinn's defense for CBS News won't be that Rather and Mapes and their entire team were incompetent, biased frauds who committed the worst kind of journalistic malpractice to change the outcome of a presidential election and then, when caught, tried to cover it up. CBS had ample, compelling, even glorious "good cause" to fire Rather no matter what time term remained on his contract or what other terms it contained to guarantee his preeminence at the network.

But CBS didn't do that. Instead, it convened the Thornburgh-Boccardi Panel, whose ultimate report was far from a bare-knuckled or clear-eyed assessment of the culpability of Rather and CBS News' top brass. CBS News eased Rather out, rather than immediately throwing his sorry butt on the street.

And now, instead of defending itself against Rather by using the awesome mechanisms of the law to prove, once and for all, the essential truths of Ra^thergate — including the indisputable fact that the Killian memos were pathetically obvious forgeries — CBS News' defense is not that Rather is a crazed scoundrel and a national disgrace, but that CBS fully performed its contractual obligations to Rather.

When I wrote that, Quinn had already persuaded the trial judge in New York state court to throw out major portions of Rather's claims without letting them go to a jury trial. New York procedural law permitted Rather to appeal that partial victory by CBS, and for CBS to cross-appeal the trial judge's refusal to throw out the rest of the case. Today, the intermediate New York appellate court, known as the Appellate Division (First Department), turned the trial judge's knockdown into an outright knockout — agreeing with Quinn (and Weil Gotshal & Manges partner Mindy J. Spector and associate Yehudah L. Buchweitz) that all of Rather's claims must be thrown out without a trial.

The 19-page opinion is dry and dull, which I'm sure is exactly what CBS and its lawyers preferred. After its introductory paragraphs, it contains essentially nothing about Bush, the Killian Memos, or the Ra^thergate controversy. Instead, the appellate court systematically demolished each of Rather's contract and tort claims, one after another, on what appear to be solid if unexciting grounds compelled by prior New York state-law precedents. At bottom, the appellate court concluded that it is indisputable that CBS lived up to its contractual obligations, and likewise indisputable that Rather couldn't show any damages of a sort recognized by New York law.

(Prof. Reynolds again justified his net moniker when he linked Volokh conspirator Jim Lindgren's post on the ruling with the summary "Loser Loses Again." Yes, that's it, in exactly three words.)

Rather's lawyers will doubtless seek rehearing in the Appellate Division, and when that is refused, they'll seek further review by the top appellate court in the New York state-court system, the New York Court of Appeals. I haven't read all of the briefing that led up to today's decision, and the briefs attacking and defending it haven't been drafted yet, but my educated guess at this point is that today's ruling will almost certainly hold up.

Thus (probably) ends the only lawsuit that could, under different circumstances (i.e., if CBS hadn't been so gutless), have given Dan Rather the thorough-going and definitive public crucifixion that he so richly deserved. I'm certainly not displeased to see my former colleagues so decisively win this case even before it went to trial, and I'm happier still that Rather undoubtedly spent a decent-sized fortune on paying his own lawyers. But as with the near-contemporaneous SwiftVets controversy from 2004, I'll always wish there had been an opportunity for the underlying facts to have been thoroughly and methodically probed through the civil justice system — by well-resourced and highly motivated parties, well-represented by superb counsel, each armed with the power to compel the production of documents and testimony, all under oath and in the harsh disinfecting glare of open court proceedings. John Kerry never made good on his or his surrogates' threats of litigation, and the target of Rather's malice, President Bush, would never have sued Rather, Mapes, or CBS even if their conspiracy had succeeded in tipping the election.

Sound arguments can be made that — my appetite for courtroom combat notwithstanding, and my belief that the civil justice system could have produced numerous significant "Perry Mason moments" in both — it's for the best that these two national controversies largely remained political, rather than spilling over into the courts. In any event, as the current publicity over Roman Polanski's re-arrest and possible extradition proves to all who have any moral compass whatsoever, there's a portion of the American public, mainly on the American left, who will essentially ignore even a sworn in-court confession by a monster who drugged and then raped (vaginally and anally) a child. Similarly, not even Rather or Kerry 'fessing up under oath could have persuaded some, or perhaps most, of the Bush-haters, because they long since had stopped being amenable to any evidence or any rational argument.

In the Obama Administration, closing "Guantanamo was everyone's part-time job"

If you need another reason to question the Obama Administration's basic ability to provide the single most important function of the federal government — keeping America safe from foreign enemies — read this WaPo story.

The Spin

True to form, the WaPo's writers and editors carefully withhold the screamingly obvious judgment that drips from the facts they report, and indeed, they try hard to spin things in a pro-Obama way. Thus, the article starts with a gentle bit of chin-rubbing:

With four months left to meet its self-imposed deadline for closing the U.S. military prison at Guantanamo Bay, Cuba, the Obama administration is working to recover from missteps that have put officials behind schedule and left them struggling to win the cooperation of Congress.

Mere "missteps" — does that kind of imply something mild, like an uneven sidewalks problem? Well, back in WW2, the good soldiers of the American military came up with an acronym for the kinds of "missteps" described in the WaPo article: "Let's recover from this situation," our soldiers would say very politely, "because at present, the situation is FUBAR'd." In this exact same sense, the Battle of the Bulge was a "misstep."

The facts reported by the WaPo go on to show that when the White House senior officials acknowledge that they're "behind schedule" on closing down Gitmo, that's actually a nice euphemism for "everything's totally screwed up and there is no actual 'schedule,' just a ridiculous, arbitrary deadline that's going to be missed and that may never be met at all, ever."

And as for the "struggle for cooperation" with Congress — wouldn't "struggle" imply something whose outcome was at least close? Readers have to dig down to paragraph 24 to be reminded that "in May, the Senate decided, by an overwhelming vote of 90 to 6, to block funding for shutting Guantanamo Bay — Obama's first major legislative setback as president."

The Fall Guy Goes Under the Great Bus of State

The WaPo gamely repeats — without comment or the Bronx cheers it actually deserves — White House counsel Gregory B. Craig's insistence that

some of his early assumptions were based on miscalculations, in part because Bush administration officials and senior Republicans in Congress had spoken publicly about closing the facility. "I thought there was, in fact, and I may have been wrong, a broad consensus about the importance to our national security objectives to close Guantanamo and how keeping Guantanamo open actually did damage to our national security objectives," he said.

Got that? Dubya is responsible both for creating all problems and for misleading the poor Obamites into thinking that they'd be easy to solve. But nothing — nothing — is ever the fault of The One and his minions, at least not to hear them tell it.

But despite the fact that this and all other evils are obviously all Dubya's fault, lest someone else — like, uh, everyone else in America who's not part of the First Family or the White House staff — become interested in assigning responsibility for events subsequent to January 20, 2009, the good angels of the Obama Administration have demonstrated, once again, that they do know very well how to throw one of their own under the wheels of the bus:

Craig oversaw the drafting of the executive order that set Jan. 22, 2010, as the date by which the prison must be closed.

"It seemed like a bold move at the time, to lay out a time frame that to us seemed sufficient to meet the goal," one senior official said. "In retrospect, it invited a fight with the Hill and left us constantly looking at the clock."

"The entire civil service counseled him not to set a deadline" to close Guantanamo, according to one senior government lawyer.

Thus Craig is clearly being set up — with or without his consent, and it's quite possible that he's been importuned to fall on his sword and is doing so willingly — as the fall guy. And where will he land?

Three administration officials said they expect Craig to leave his current post in the near future, and one said he is on the short list for a seat on the bench or a diplomatic position. Craig has long made clear his desire to be involved in foreign policy, but he declined to comment on his plans.

How likely is it that Roger Craig will be the next Ambassador to, say, China, the United Kingdom, or Bermuda? I'd say only slightly better than the odds that the Obama Administration will meet President Obama's own the outgoing White House counsel's own self-imposed deadline for closing Gitmo:

After the congressional setbacks, Craig orchestrated the release of four of the Uighurs, flying with them and a State Department official from Guantanamo Bay to Bermuda, a self-governing British territory whose international relations are administered by Britain.

The transfer produced a diplomatic rift. British and U.S. officials said the Obama administration gave Britain two hours' notice that the Uighurs were being sent to Bermuda. "They essentially snuck them in, and we were furious," said a senior British official.

The move also caused friction between Britain and China, which seeks the Uighurs for waging an insurgency against the Chinese government.

Still Holding Your Breath for Gitmo to Be Closed?

And so how close, then, did the Obama Administration come to meeting its goal before Mr. Craig became tire fodder for the Great Bus of State?

In coming weeks, officials say, they expect to complete the initial review of all the files of those held at Guantanamo Bay.

(Italics mine.)

The scariest part of all this is that these are facts revealed by the Washington Post. If the pro-Obama WaPo can't put any better face on what's going on inside the Obama Administration's prosecution of the Global War on Terror (whatever they've renamed it to this week), how much chaos must there really be behind the scenes?

My absolute favorite quote could be expanded beyond the Guantanamo Bay closure difficulties to describe the entire Obama Presidency to date:

"Guantanamo was everyone's part-time job," said a senior official, one of several interviewed for this article who spoke on the condition of anonymity to discuss internal deliberations.

Amateurs. Incompetents. Ideologues. Full-time politicians turned half-wit government officials. Brilliant leftists who, confronted with the real world, are exposed as clueless idiots and children.

It's going to be a long time until January 2013. Will the millions of American voters who should have known better, but who were taken in by Obama's sham, have stopped thinking 'Wow!' by at least November 2012?

End legislative malpractice by amending the Constitution

From University of Tennessee constitutional law professor Glenn Reynolds, aka InstaPundit, an item with which I fiercely agree (ellipsis his):

DAVID POST: Should Lawmakers, Um, Read the Laws They’re Voting On?

Sounds like something you’d ask in a third-grade civics class. But an odd editorial in today’s Washington Post takes to task “a group of well-meaning professional activists — and, so far, over nearly 60,000 online petitioners” who have demanded that members of Congress sign a pledge “never to vote on any bill unless they have read every word of it.” While the activists “have a point,” the Post concedes, their “proposal would bring government to a standstill.”

That’s not a bug, it’s a feature ....

Every time I deal with a federal statute in the context of giving legal advice to a client — which is an utterly basic function of being a lawyer — I have to actually read and then understand the statute. My failure to do so would be malpractice per se — something absolutely indefensible, something never excusable under any circumstances. As soon as I admitted or it was otherwise proven that I didn’t read and understand the statute, the only question in a malpractice case would be the size of the damage award against me.

But if that’s an utterly basic function of being a lawyer who merely advises private clients on how the law may or may not apply, shouldn’t it be an even more basic function of a law-maker, a legislator, who creates the laws that apply to an entire country?

By no means am I saying that all legislators therefore must be lawyers. (They certainly already have staff lawyers to help them if they need or want such help.) But if an educated layman, with careful and close study, still can’t parse through the language of a bill and figure out what it does, and how it does what it does, then that says something awful and disqualifying about the legislator, the bill, or both.

A simple pledge, though, would be about as credible and enforceable as Obama’s promises that health care reform won’t add a single dime to the budget — which is to say, a cruel and illusory farce capable of taking in only the most simpleminded and naïve.

Accordingly: I would genuinely support a Constitutional amendment which required every Congressman and Senator, upon casting every vote, to swear under penalty of perjury — with existing perjury criminal penalties, PLUS instant disqualification from office — that he or she had read every word of everything he or she voted upon. Not just a summary (although they could read summaries too, if they chose) or a recommendation (again, fine as a supplement, but not as a replacement). Enforcement to be by a mechanism where 10% of either chamber’s members could indict and prosecute any member of either chamber for an alleged violation, trial to be held within 30 days on national TV, finder of fact to be a jury of 51 randomly selected voters (one from each state plus the District of Columbia), conviction and expulsion (without appeal) to be based on a simple majority vote.

For a bullet-proof practical defense — and indeed, perhaps even a prophylactic "safe harbor" provision written into the amendment or its enabling legislation to guard against unfair and untrue accusations — every legislator only needs a video camera to record him or her with an over-the-shoulder view of the text he or she is reading and the pages he or she is turning, perhaps with a side-shot of the notes he or she is taking too.  The videos can be posted on C-SPAN or YouTube along with congress.gov.

Note well: This is, and should be, a completely non-partisan "good government" issue. But I'm relatively sure which party's politicians would bitch and moan the loudest and fight the hardest.

Mike Leach's misplaced pique

Texas Tech head football coach Mike Leach threw a middle-sized fit Saturday night during Tech's 34-24 loss to the Texas Longhorns, insisting that the officials had improperly frustrated an attempted trick play by the Red Raiders. According to the Dallas Morning News:

Texas Tech coach Mike Leach was upset with the officials at halftime.

On the final play of the first half, Tech quarterback Taylor Potts pretended to take a knee before dropping back for a pass. Replays showed Potts' knee never touched the turf, but the officials blew the play dead.

"We never took the knee, and they whistled it down," Leach told ABC as he left the field.

Coach Leach could also be seen berating the officials immediately after the call, although the exact wording of his shouts wasn't audible on ABC Sports' broadcast sound feed, and I don't know if there was profanity to go along with his arm-waving. And Leach's fussing, combined with the replay, apparently convinced at least some observers that the refs had treated the Raiders unfairly. The Houston Chronicle's David Barron wrote, for example, that the "Red Raiders were waylaid by a potential borderline call by the officials that short-circuited an attempted trick play in the final seconds of the first half." Don Williams of the Lubbock Avalanche-Journal's RedRaiders.com website likewise noted that the "Red Raiders were irritated with the way the first half ended," and at least implicitly blamed the refs by pointing out that "a television replay showed Potts’ knee never touched the ground." Tech trailed Texas 10 to 3 at the half, so if the trick play had gone for a touchdown, that presumably would have resulted in a half-time tie and an even closer second half than that which actually ensued (the 'Horns didn't put the game away until the final 90 seconds).

But while Coach Leach was right that Potts' knee never quite touched the turf, he was dead wrong to fault the officials for blowing the play dead. There can be no doubt whether this was a deliberately called trick play — Tech telegraphed that by taking a timeout with one second left in the half before they tried it, and Leach could be seen giving detailed instructions to Potts that were clearly too complicated to be "Take a knee and let's go to the locker room, son." And as it was in fact executed, there likewise was no doubt whatsoever that Potts was deliberately trying to make it look to the 'Horn defenders like he was merely taking a knee to run out the clock, and the rest of Potts' teammates were cooperating in that farce. Based on the simulated kneel-down, the refs made exactly the right call:

From the NCAA Football 2009-10 Rules and Interpretations manual, Rule 4, Article 3, entitled "Ball Declared Dead," provides in pertinent part as follows (at pages FR-79 to -80, corresponding to pages 82-83 of the .pdf version):

A live ball becomes dead and an official shall sound his whistle or declare it dead:

....

o. When a ball carrier simulates placing his knee on the ground.

During the third quarter of the Tech vs. Texas game, the ABC announcers said they'd been informed by a representative of the officiating crew that the ruling was based on a Big 12 Conference rule, but so far I've been unable to find anything online to support that; I suspect they meant to reference the NCAA rule, which would be binding upon the Big 12 Conference anyway. The NFL also has a similar rule for simulated kneel-downs during the last two minutes of each half according to the most recent version of the Official NFL Rulebook that I could find online (from 2006). See Rule 7, Section 4, Article 1(b) (at page 45, corresponding to page 53 of the .pdf file).

It's not hard to understand why both the NCAA and NFL rules forbid the kind of trick Coach Leach was trying to pull. Certain types of deception are fundamental to football — the man in motion, the shifting formations; the disguised blitz; the pump-fake before a handoff to a running back, or the play-action pass preceded by a fake hand-off; the double-reverse, the halfback pass, and the flea flicker; the onside kick and the fake punt. All of these deceptive moves prior to or during plays, and many more, have their place. Indeed, we saw many of them at one point or another during this very game.

But when defenders reasonably believe the QB is taking a knee, they also reasonably expect to be penalized if they even touch him. It's fundamentally unfair to let the QB claim immunity from a normal hit while leaving him free to throw a touchdown; and if QBs who genuinely are taking a knee aren't protected while doing so, they will be much more likely to be injured. Moreover, defensive players all over the field relax and let down their guards when they have good cause to believe a play is over and that the ball is dead; players are, in general, far more vulnerable to injury when taken by surprise; and the same downfield block that might have merely knocked a prepared player off his feet becomes a career-ending spinal cord injury on the wholly unprepared player who's walking back to the defensive huddle (or to the locker room). We penalize the team whose punt returner tries to advance a punt after signaling "fair catch" for similar reasons — not because the rules are trying to crush all excitement and deception from the game, but because certain types of exciting deception are both unfair and unreasonably dangerous.

Of course, I'm a Longhorn loyalist and alum, but I'm generally a fan of Coach Leach and the Raiders when they're not playing Texas. Overall, they played a great game again this year, for which I congratulate them. Still, one might reasonably expect all NCAA Division 1 head football coaches to know what's in the rulebook. One might reasonably expect such a coach not to unfairly blame the refs on national TV for properly enforcing the rules as written. And those expectations might be especially appropriate for an NCAA Division 1 head football coach who's also a lawyer: Mike Leach earned his Juris Doctor degree from Pepperdine University School of Law in 1986.

Coach Leach owes a public apology to the referees from this game.

Obama's arrogance hits new heights, with no limit in sight

The President of the United States and his senior staff have bragged to the New York Times that they have asked the sitting governor of the State of New York, David Paterson, to drop out of the 2010 New York gubernatorial race.

Speaking for attribution but not under their own names, "two senior administration officials and a New York Democratic operative with direct knowledge of the situation" have executed this attempted political assassination of their co-partisan from the East Coast's most populous blue state. And they made clear that they are not acting on some sort of frolicsome detour from their official duties, nor as power-drunk and -mad rogues acting without knowledge of their principal. Rather, their symbolic kiss of death to Paterson's campaign was, they insisted, "proposed by political advisers to Mr. Obama, but approved by the president himself."

The Times, of course, ran the story at the top of its Sunday front page in the featured right-column slot on both its NYC and national editions. The headline is "Obama Requests That Paterson Drop Campaign." As I write this, the online version is also the lead story on the main page of the Times' website.

The sub-headline reveals the lame, sad, but honest basis for Obama's decision: "Governor Lags in Polls." Yes, Paterson has committed the ultimate sin among the present day's "pragmatically progressive" Democrats, one far worse than his predecessor's well-publicized indiscretions with high-priced callgirls. Therefore commandeth The One, through his holy minions: "Now get thee under the bus, Paterson!"

I am no fan of Gov. Paterson's. I can't argue with the crass political calculations that may have prompted Barack Obama and his senior advisers to conclude that Paterson's continued presence in the 2010 race would harm the political fortunes of the Democratic Party and, most especially, the nation's Top Democrat.

But the sheer presumptuousness of this bit of overtly manipulative kabuki theater — the unmitigated arrogance, the craven Constitutional malice this ugly scheme encompasses — simply stuns me.

They are shameless, in the most literal sense of that word.

Beldar summarizes Obama's health care address to Congress

Once upon a time — on a magic day when the calendars all said "Oh, nine! Oh, nine! Oh nine!" — King Canute rode on his Magic Pony down the aisle of the Wizards' Castle until he reached the pretty blue carpet at the bottom. Even though he wasn't at the seashore, when he climbed down from his pony, the waves and waves of applause made King Canute think he was. So he ordered the sea to cease its lapping at the shore, for its waves to stop rolling, and for the government operation of health care — through Medicare and through the King's "public-option plan," and through all the other ways that government has regulated and will regulate the rest of the health care industry — to be perfectly efficient and effective. Perfect! Yay! The Democrats all cheered and gave him many standing ovations to demonstrate their belief that indeed, the sea will soon go absolutely still, and our government will now and forever after do superbly that which no government before, including our own, has managed to do even adequately even for one day.

The King announced that henceforth, because he and his Magic Pony are very smart and will show us how, everyone can get more of everything, and everything will be better than it is now, but it will all cost less money than even just some of us are spending now. Brave, clever King Canute! No King will ever again have to worry about the sea moving, or about health care. Why didn't we make him the King way back when Good King Ronny was getting old? Oh yeah, now I 'member: It's 'cause King Canute was still doing cocaine back then, when he was just Prince Barry. It's good that he stopped that, and that he learned to think and speak so clearly now, especially about how to save money! Yay! Nobody is more believable than King Canute when he promises to save money and cut government spending!

King Canute said that there are "details still to be worked out" — drawing an appreciative laugh from the other politicians present, who sympathized with the King for his gigantic mistake of accidentally going off-script to tell the truth for a moment. But the TelePrompter of the United States regained control over the scene and the speech, and so there were no further accidental encounters with reality. Thank goodness for the TOTUS!

And the King's "public-option plan" will be especially clever, since it will be better and cheaper than everything the private companies offer ('cause the Magic Pony will pay all its expenses and won't take away any profits). But don't worry — the King promised that the public-option plan will only be available to those without insurance! Thus did the King solve the old problem of those who complain when others pee in the pool. Now surely only people who really feel the need to pee will decide to pee in the pool, and now surely no companies or individuals that are having trouble paying for insurance will decide to become "without insurance" so they can get into the government-subsidized public-option plan. Therefore, no one in the pool needs to worry about ever being touched by pee, nor to worry about the public-option plan turning into a government health-care monopoly with single-payer socialized medicine like they have in Merrie Olde Englande. "Whee whee whee!" shouted the happy Democrats, "Slippery slopes are fun!" ("Pee pee pee," muttered the grumpy Republicans, "We see where this is going.")

Thereupon King Canute did a happy dance to make everyone feel happy, and then he acknowledged the many cheers, and he remounted his Magic Pony and rode back up the aisle. Most of those on the right side of the aisle, and even a few of them on the left, noticed that the Magic Pony had left behind a steaming, fragrant gift on the pretty blue carpet. Most of them on the left thought the gift was dessert, so they gobbled it up while insisting that it was really, really yummy. But they saved a piece for you. Do you want it?