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The Olberman Affair

by JOHN DEAN

At the end of March, Keith Olbermann was terminated from his position as the anchor of “Countdown With Keith Olbermann” and Chief News Officer at Current TV.  A few days later, on April 3, Keith appeared on David Letterman’s “The Late Show,” where he talked about his departure from Current TV.

When discussing his decision to join Current TV, Keith explained to Dave, “I screwed up.” This comment became the headline that emerged from their visit, appearing, for example, here and here.  During his conversation with Letterman, Keith also suggested that he was going to pursue a lawsuit. Two days later, on April 5, that action was filed.

I am a friend of Keith’s, and I’ve been a regular on-air guest or contributor to “Countdown” for over a decade.  Thus, I received a large number of Twitter comments regarding Keith’s termination.  Some of the comments—from attorneys and others—were to the effect that Keith had blown his lawsuit against Current TV when he made his “I screwed up” comment on The Late Show.

Initially, I ignored these comments, because I thought that the people making them either had not heard what Keith actually said, or had merely read a headline that caused them to reach that erroneous conclusion.

Then, on April 6, when Current TV filed its technical legal answer and a more media friendly cross-complaint, I had second thoughts about responding, and decided to correct the error that some commenters had been making.

Current TV’s Claim That Olbermann Admitted to Screwing Up

The opening paragraph of Current TV’s cross-complaint against Olbermann reads as follows: “On April 3, Keith Olbermann told David Letterman and a national television audience that his termination by Current TV was ‘my fault’ and that ‘I screwed up.’ Two days later, he apparently forgot what he said, filing a frivolous complaint riddled with falsehoods and distortions in which he refused to take any responsibility whatsoever for that termination.”

When I watched the clip of the program that was released by CBS, I could understand where the Current TV attorneys had obtained their information.  But the clip did not comport with my memory of the exchange, and when I replayed it, I could see that it had been conspicuously edited.

Soon, I found a clip of the full Olbermann interview on YouTube, and that clip was very different from the CBS clip, and from the contention in Current TV’s cross-complaint.  When I realized this, I was relieved that I was not losing my memory.  To the contrary, just as I had recalled, Keith was not talking about the reasons for his departure. Instead, Keith had told Dave that he had “screwed up” by joining Current TV in the first place.  Here is the video clip, and if readers click on this link, they will find the key statement, put in its original context, as part of a transcript I prepared.

The Transcript of Olbermann’s Interview With Letterman

The Olbermann segment opens with an introduction, and a brief discussion of basketball.  During this discussion, Letterman is holding a small white card in his hand. Letterman changes the direction of the conversation by asking Keith to tell his story.

“Ah, how much time have you got?” Keith quipped.  This is a set-up for a joke Dave has prepared.  Keith feigns confusion about all of these jobs in television, and Dave gives him an adjustable business card reading: “Keith Olbermann, News Anchor.”  The card features a small window.  Behind the window, it is possible to see part—but only part—of a wheel.  Depending on which setting of the wheel is chosen, the card shows either “MSNBC,” or “Current TV,” or “ESPN,” or CNN.”  When Dave spins the wheel, with the spin and its result shown by a close-up camera, the audience laughs and applauds.

Letterman then reports that “a lot of people were skeptical” when Keith decided to join Current TV because Dave said he didn’t know what they did at Current TV, so he figured it was “going to be fantastic or it’s just going to be nothing, and it turned out to be—.”  Keith finished the sentence with a stage whisper: “Nothing.”

David asks, “First of all, do they know what they’re doing over there.  Because you know what you’re doing.” Keith thanks him for that acknowledgement.  Then Dave proceeds: “All right, so do they, the Current TV people, know what they’re doing?  It’s former Vice President Al Gore.  Does he know what he’s doing on TV?”

Before proceeding further, Keith says, “I screwed up.  I screwed up really big on this.  Let’s just start there. I thought we could do this. Ah, it’s my fault that it didn’t succeed in the sense that I didn’t think the whole thing through.  I didn’t say, you know, if you buy a ten million dollar chandelier, you should have a house to put it in. Just walking around with a ten million dollar chandelier isn’t going to do anybody a lot of good.”

Dave agrees, “No.”

Keith then continues, “And it’s not going to do any good to the chandelier. And then it turned out we didn’t have a lot to put the house in, to put the chandelier in, or a building permit. And I, (audience laughter), I should have known that. And it’s, it is, it is my fault, at, at heart. Ah—

“You’re the chandelier?” Dave asked.

“I’m the chandelier,” Keith acknowledges and the audience erupts with laughter and applause. “You are always pointing out how big my head is, so I think it’s a suitable analogy,” Keith adds.

“But, but, now,” Dave interrupts, “I’ve been in situations in my lifetime where the second I agreed to something, I got that sinking feeling in my stomach, and I said to myself on those occasions—

“Yeah—,” Keith agrees.

“Holy goodness, I’ve just made a huge mistake. Did that happen to you?” Dave asks.

“It did,” Keith says.  He adds, “And we even joked about it, if you recall, last September when I came out and did a Top Ten List.” Here, Keith is setting up another joke for Dave, who recalls the prior visit.  And soon Dave is rolling the video of Keith doing the Top Ten list of “Reasons to Watch the New ‘Countdown with Keith Olbermann’,” with Keith reading #2: “Better watch now because things could go wrong in a hurry.” The audience laughs again.

Plainly, the exchange between Dave and Keith is all about Keith’s mistake in joining Current TV—a decision that, as the taped video shows, Keith suspected early on might not have been the right one.  (This fact is spelled out in his complaint.)

The transcript reveals (as will watching the video segment) that there was no discussion whatsoever about Keith’s termination, or about Keith’s screwing something up being the reason for his termination.

Inaccurate Pleadings Are The Norm Today, with Current TV’s Pleading in the Olbermann Case No Exception

Charges and countercharges have been flying back and forth between Keith and Current TV, in their respective pleadings.  In reading Keith’s complaint, and knowing him to be scrupulously honest, I have no doubt that what his attorneys have stated is the truth. Keith would not allow them to file a pleading that contained anything less than the truth.

While there may be an innocent explanation for Current TV’s opening misstatement of fact in its cross-complaint, that misstatement nonetheless shows a lack of due diligence, for if Current TV had attempted to confirm the statement that they claim Keith made on Letterman’s show, such confirmation would have been impossible. No such claim was made.  This apparent lack of due diligence is a bit disconcerting. However, it is not an unusual thing when it comes to pleadings nowadays.  Nor is it likely that Current TV will go back and correct its error.

Today, pleadings merely give notice of the claims and contentions of the parties, and they are too often riddled with errors.  While attorneys must represent to the court that they believe the statements they make to the court—including the statements they make in their pleadings—are correct, I have never seen an attorney actually correct an erroneous statement in a pleading. Nor do judges want to get involved in ensuring that these documents are accurate.

Suffice it to say, contrary to the mistaken impression of many who are following this litigation, Keith did not blow his lawsuit on Letterman’s show.  And Current TV appears to misunderstand what Keith did, and did not say, on Letterman’s show.  If the case moves from the pleadings stage to the discovery stage, however, the evidence will reveal that the claim that Keith blew his lawsuit by admitting error is entirely baseless.

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.

This column originally appeared in Justia‘s Verdict.

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