A Word on Internal Investigations

I just read a fascinating story by Sarah Ellison in Vanity Fair about the downfall of Fox News head Roger Ailes. The backstory is well known by now, of course: Ailes sexually harassed women he employed for decades and got away with it for almost as long. His downfall came when former Fox News anchor Gretchen Carlson sued him for it in July, leading to his disgrace and departure.

​The Vanity Fair article is not interesting for the facts regarding Ailes’ conduct, however. For a much better treatment of that go with Gabriel Sherman’s detailed and at times sickening account of it all in his early September story at New York Magazine. No, it’s fascinating because it’s an account of the legal process which actually effected Ailes’ termination. Specifically, the Fox-led internal investigation of Ailes launched by James and Lachlan Murdoch, sons of News Corp head Rupert Murdoch, and Gerson Zweifach, the general counsel of 21st Century Fox once Carlson filed her lawsuit.

Ellison casts their decision to launch the investigation, rather than circle the wagons, issue a statement and help Ailes defend the suit, as a watershed moment for Fox. One in which two decades of supporting Ailes came to an end and the future of the network, rather than the future and ego of Ailes, became the primary goal of the Murdochs. And it certainly was. As she notes, once damage control with respect to Ailes became a matter of “a faceless law firm gathering information” – “a drone strike” as opposed to an executive level street fight – Ailes power was gone and it was only a matter of time until he was too.

Once upon a time I was one of those faceless drones. Part of what I did at the law firms I worked for was take part in and, later, conduct internal investigations. There was never anything as grand or as high profile as the Fox investigation – I dealt with employee theft, embezzlement and sexual harassment by people far less important than Ailes – but the setup was still the same.

We would show up on-site at the client’s office and set up shop in a conference room. One by one, employees who were already terrified because they heard “the lawyers” were coming in to talk to them, but who knew little else, were brought in. We would ask them questions and review their documents if they had any. Eventually we’d submit a report and recommendations to the client of how to proceed, who to fire, who to sue and, in some cases, who to refer to law enforcement.

While it always dealt with sensitive matters, conducting an internal investigation was a pretty easy task, mechanically speaking. While movies and TV shows make interrogations look like complicated games of cat and mouse, it’s amazing how easy it is to get to the truth of a matter simply by asking basic questions. People tend not to lie as much as you’d think and, when they do, most are really bad liars. Especially when they’re talking to the lawyers hired by their bosses to come in and ask questions. Usually because they’re scared and intimidated.

But no matter how easy or effective an internal investigation happened to be, it’s worth noting that it was not necessarily noble work. Yes, there were some investigations where there had been specific wrongdoing and everyone involved wanted it sussed out, but in just as many if not more cases it was a means of the client trying to limit its liability on what could become a bigger issue later or to hide its own actions or inactions with respect to wrongdoing under the cloak of attorney-client privilege. The end result of these things was always one or two people hung out to dry. Usually deservedly so but always, and often conspicuously, by themselves, even in cases where it was highly unlikely that they were the only ones to blame.

Which brings me back to the Ailes piece.

Given the framing of Ellison’s article and the deep access she appeared to have, it seems pretty clear that her source on much of this stuff were James and/or Lachlan Murdoch or people very close to them. I mean, it stats out with one of the Murdoch sons on a hike by himself and has a line about one of their wives’ personal opinions about Ailes. It likewise puts us at a luncheon in Rupert Murdoch’s apartment that did not have a large guest list. Whoever the specific sources were, it’s not that surprising that the Murdoch’s decision to launch the investigation is cast as the Big Moment in the story. I suspect that Ellison’s sources would like to be seen as tactically brilliant, brave or even quasi-heroic for launching that investigation.

​While I wouldn’t go that far, I will grant that what they did was certainly preferable to how incidents of sexual harassment have long been treated by corporations in general and how Ailes’ odious conduct was treated at Fox before July of this year. They could’ve spent years trying to grind Gretchen Carlson and any other plaintiff who came along into the dirt rather than cut her a check for $20 million and fire her harasser. So don’t think for a moment that I’m condemning them here.

Still, it’s worth noting – as Ellison herself notes in passing in the article – how limited the investigation actually was. How questions not asked in an internal investigation are just as much if not more important than the questions that are asked. How it was designed, yes, to figure out what Roger Ailes did wrong, but was specifically designed to not find out how far beyond him it went. Who enabled him. Who was emboldened by him. Indeed, Ellison notes that many were skeptical of conclusions or suggestions that the harassment did not go beyond or beneath Ailes. Given how most workplaces operate and given how Fox News was so thoroughly controlled by Ailes, it would be shocking if his behavior was some isolated thing. People do well in companies like that one when they act like the boss.

​So, sure, give Fox a brief pat on the back for investigating and canning Roger Ailes. But don’t believe that investigation, or any other investigation like it, was aimed at changing the culture of a workplace. Such things, by definition, are designed to contain problems, not to solve them.

Craig Calcaterra

Craig is the author of the daily baseball (and other things) newsletter, Cup of Coffee. He writes about other things at Craigcalcaterra.com. He lives in New Albany, Ohio with his wife, two kids, and many cats.