Roundtable: Andersen Ruling, Deep Throat, FMLA

Topics on Wednesday's roundtable include: the Supreme Court's overturning of the Arthur Andersen conviction for the accounting firm's role in the Enron scandal; the identity of "Deep Throat"; and the Family Medical Leave Act. Guests: E.R. Shipp, a columnist at the New York Daily News, Robert George, editorial writer at the New York Post, and George Curry, editor-in-chief of the National Newspaper Publishers Association News Service.

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ED GORDON, host:

All right. Now we turn our attention to what we normally do at this time, and that's our roundtable. Arthur Andersen's conviction overturned, we'll talk a little bit more about Deep Throat and the Family Medical Leave at the center of a debate. Joining us in our New York bureau: E.R. Shipp, a columnist for the New York Daily News; and Robert George, editorial writer at the New York Post; also with us George Curry, editor in chief of the National Newspaper Publishers Association News Service, and he joins us from Maryland.

Thanks very much, folks.

Let me, George, turn my attention to you first. And let's get back into, quickly, Deep Throat and your thoughts of this revelation and whether or not it means anything.

Mr. GEORGE CURRY (Editor In Chief, National Newspaper Publishers Association News Service): Well, I'm a little older than Juan, so I had probably been in the business about five years when this happened. I think--and Bob--I think Woodward--Bernstein, actually--Carl Bernstein said it best. He said, `You know, this is a great source, but what it did was overshadow some of the other institutions that came into play to really bring down the Nixon administration.' Nixon brought down himself, and for the younger people, he had a secret taping device in his office where he taped everything. So his tapes really made sure that he got out of office.

But there were other things at work. The Senate hearings--I remember Sam Ervin over those. You had those White House recordings. You had the unanimous Supreme Court, the ruling that the tapes had to be turned over. This was a pivotal time. This is the biggest case in my lifetime involving journalism, and I think it was journalism at its best.

GORDON: E.R. Shipp, let me ask you, so many people now reflecting on this man that many, quite frankly, had never heard of, and some calling him a traitor, that he should have, if nothing else, just simply resigned and turned it over to an investigative committee. What do you think about what he did and how he did it?

Ms. E.R. SHIPP (Columnist, New York Daily News): Well, it's very complicated, as we're understanding from some of the comments being made now. Some people say he's a hero; others, particularly those from the Nixon years, are calling him a traitor because he did not turn over this information to a grand jury or somebody said he should have just gone to the president, looked him in the face and said, `This is what we know,' and then stepped down...

GORDON: Yeah.

Ms. SHIPP: Yeah, I know--and then stepped down, whatever. But I think one of the best comments so far was from one of his neighbors, and I'll read it. This is from the LA Times. (Reading) `I don't think he was a hero. I don't think he was a villain. I think he did his duty the way he saw fit to do it,' and I think that's kind of the summary of who Felt is.

GORDON: Robert George, does it matter that people are suggesting that this was not altruism or patriotism; it was sour grapes because he was passed over, he thought perhaps because he was a career man at the FBI, he should have been given the top post?

Mr. ROBERT GEORGE (Editorial Writer, New York Post): No, Ed, I don't think it really matters at all, because what we always find in the media world, if we find a source, somebody who wants to talk, there's going to be all kinds of reasons why that person may want to come forward. He may have missed out on a job opportunity, he may have been demoted, his boss may be having an affair with his wife. There are all these kind of particular motives. But if the person has the information, obviously, it's the job of the journalist to check to see whether that information is true. And you don't really necessarily have to worry about what the personal motivations may be.

Mr. CURRY: I...

GORDON: And most--go ahead, George.

Mr. CURRY: I'm sorry.

GORDON: Go ahead.

Mr. CURRY: I just think that it's very important to point out that we had the FBI director--L. Patrick Gray was participating in this cover-up, and Felt knew that he could not go to the Justice Department. The FBI is part of the Justice Department, so he couldn't go to the Justice Department, 'cause they're involved in it, and this is where he had to turn to. And so I think it's interesting to put it in--it's important to put it in that context.

Mr. GEORGE: And remember, though...

Mr. CURRY: Yeah, I...

Mr. GEORGE: ...Patrick Gray, of course, was the person who'd come from the Justice Department after Hoover had died and was placed over Felt. So that's one--obviously, that was one reason--he was not somebody that Felt was going to be able trust at all.

Ms. SHIPP: And it's not that...

Mr. CURRY: But we was involved in the cover-up, and it was very--quite clear...

GORDON: Sure.

Mr. CURRY: ...from all the documentation that Gray was involved in the cover-up, so Felt couldn't go to L. Patrick Gray.

Mr. GEORGE: Yeah, I know. That's right. That's what...

Ms. SHIPP: But even Felt... himself feels conflicted, or has seemed to be conflicted...

Mr. CURRY: Sure.

Ms. SHIPP: ...over the years about what he died. He denied, of course, that he was Deep Throat for about 30 years, but he also said that, you know, nobody in the FBI would ever leak information. He did...

Mr. GEORGE: What I think--you know, what I think is rather interesting about this is how if you look at some of the people who were around the Nixon White House--I mean, people like Pat Buchanan, who was not implicated, but you know, is still partisan--it's interesting to see how 30 years later, the emotions are still just as raw as ever. I mean, Buchanan is one of those telling him that he was...

Ms. SHIPP: Treacherous.

Mr. GEORGE: ...(unintelligible)--they say he was a traitor. And I wouldn't be surprised if, you know, 25 years from now when we're still talking about Monica Lewinsky, if the emotions are as raw from the former Clinton administration people as the emotions are raw with the former Nixon people.

GORDON: And it really is, quite frankly, interesting to see outside of John Dean--and to a great degree, we all know that he was cast as, and was to some degree, an outsider in relation to the boys club that was that White House, as George and Robert and E.R. have suggested--it is still very raw for these men and, quite frankly, almost impossible for them to see that no matter what happened, it was the deed coming from that office that really is the issue and the problem here.

Mr. GEORGE: Well, yeah. I mean, what--I think what's--it's interesting that the kind of cult of loyalty, the real blind loyalty that a political setting puts on people. When you say that this person is the--you know, that you feel this president is doing the right thing and is the best man for the country, you--I mean, it's like being in love. You completely--you don't see any kind of flaws at all, and you will go to the mat, you will lie, cheat or whatever for this person, even though it's not necessarily the right thing.

GORDON: Yeah. But here's the difference. When it's over and you're no longer in love, you usually see that person's flaws. And all those little cute things that you used to smile about now grate your nerves like never before.

Mr. GEORGE: Well, then again, it's as if the person, you know, died when they were young, and you were--it wasn't--and you never went through the divorce.

GORDON: All right.

Mr. GEORGE: Let's put it that way.

GORDON: Let me move quickly to something that a lot of people are looking at and talking about as relates to the judicial system. The Supreme Court this week overturned the conviction of the Arthur Andersen accounting firm for destroying Enron Corp.-related documents before the energy giant's collapse. And it was said--the decision was said that the jury instructions at trial were too vague and broad for jurors to determine correctly whether Andersen, the company, had obstructed justice. E.R., talk to me from--put your legal hat on for me.

Ms. SHIPP: OK.

GORDON: What does this say?

Ms. SHIPP: Well, it says, `Oops.'

Mr. GEORGE: `Our bad. Oops, our bad.'

Ms. SHIPP: `We got it wrong down the line somewhere.' But basically what it's saying is that this case is not over yet. It was resolved unanimously, by the way, and that's something that's almost unheard of these days. But the entire court decided, on essentially a technicality, that the jury instructions were convoluted and confusing, and I wanted to read a little bit from that. (Reading) `Under ordinary circumstances, it is not wrongful for a manger to instruct his employees to comply with a valid document retention policy, even though the policy in part is created to keep certain information from others, including the government.' The point was when Arthur Andersen's managers told their employees that they could start destroying documents, that's not necessarily illegal.

Mr. GEORGE: You know, that's--of course, the interesting about this is, though, this is, like, a situation where another court basically finds out that the previous court made a mistake, but unfortunately, the defendant has been executed. I mean, Arthur Andersen is completely out of business. A lot of people lost their...

Ms. SHIPP: Thirty thousand people lost jobs.

Mr. GEORGE: ...lost their jobs for it. Now that's not necessarily to say that Arthur Andersen didn't do a lot of wrong things in relation to Enron, but now it's the question as to whether the penalty actually fit what they actually did.

Mr. CURRY: Well, I think it's important to understand this came directly after Enron, and this was a major case for the Bush administration. They were pledging to take on white-collar crime, and this was a high-profile case. I find it disturbing, though--and E.R. just read the segment of the opinion where basically--and Rehnquist wrote the majority opinion--saying, `Even if the intent is to keep information from the government, it's all right to destroy these documents.' So, you know, that's going to send a mixed signal, I think, to corporate America.

Ms. SHIPP: It's not so much mixed--and I almost understand why the defense bar joined in with Andersen and others, because it's not just limited to accounting firms. It's anybody generating...

Mr. GEORGE: Or corporations.

Ms. SHIPP: Anybody generating...

Mr. GEORGE: Individual...

Ms. SHIPP: ...business documents.

Mr. GEORGE: Individual defendants have those same kind of rights, as well. And, in fact--I mean, it's no exactly the same situation, but if you take a look at the case going on in Florida where there's this battle over Rush Limbaugh's medical records as well, you know, there is this question as to how much power the government should have in terms of demanding certain information. So it does actually have broader applications beyond just the corporate level.

Mr. CURRY: And it's a balancing act, too. I mean, let's not think that Arthur Andersen was just saying, `Let's get rid of some old papers.' I mean, they were about to be investigated by the SEC, and that's why they issued the orders to destroy the documents. I agree that this has implications for all business, because--and particularly in the legal field, where you have working drafts and whether these kind of documents can be subpoenaed or not, but...

Ms. SHIPP: Think about us journalists.

Mr. GEORGE: I think this is...

Mr. CURRY: Pardon?

Mr. GEORGE: This is ma--Ed, I think this is man bites dog here, you know. I think, you know, George seems to be almost arguing the government's side here, and I'm coming down on the defendant's side. What's going on?

GORDON: I don't know. Well, you know, now we know who Deep Throat is.

Ms. SHIPP: Maybe it's that love thing....

GORDON: That's right.

Ms. SHIPP: ...that you-all were talking about before.

GORDON: It's throwing the balance of the world off. Let me ask this very quickly. We also see the idea of the judicial system and the importance of the technicalities. Ofttimes, we wonder, `Can the end justify the means by virtue of staying technical even if you know that there's some wrongdoing there?'

Ms. SHIPP: Well, let me weigh in on that one. Oftentimes, when people talk about technicalities, they are forgetting the fact that the Constitution provides certain rights. And if you can argue that those rights have been violated--in this case, the jury instructions were wrong, so Arthur Andersen ended up not having the, quote, unquote, "fair trial." So it feels like a technicality if you don't like the result, but it really is protecting our constitutional rights ultimately.

GORDON: Well, technicality in the sense--I would still stick with that, E.R., in that they said they were vague and broad, not necessarily wrong.

Ms. SHIPP: That the instruction--that's right. And, in fact, the case isn't over because the feds haven't decided yet whether they're going to retry Andersen.

GORDON: All right.

Ms. SHIPP: And there's nothing to say that Andersen has been vindicated.

GORDON: Exactly. And, E.R., you and I will continue to argue splitting hairs when we take this quick break. George, Robert and E.R., thanks so much. Appreciate it.

Mr. CURRY: All right. Thank you.

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