Ohio State football is a lot like the New York Yankees and the New England Patriots. By that I mean not only that the Buckeyes have had success on the field, but also that if you don’t love them, there’s a good chance you hate them. (This is not true for all successful sports programs; most people are not San Antonio Spurs fans but don’t begrudge the team its four championships over an eight-year period a decade ago.) So the negative predisposition many in the college football world have towards Ohio State (perhaps owing in some measure to the idiotic convention Buckeyes have adopted of referring to themselves as “The Ohio State University”) might explain a bit of the unenthusiastic reception in many quarters around the country of the recently issued Independent Investigation Summary of Findings concerning Coach Urban Meyer’s handling of domestic violence allegations against one of his longtime assistant coaches, Zach Smith. The findings underlay the University’s decision to discipline Coach Meyer only very lightly—a one-week suspension in leading practices and a three-week suspension on Gamedays. Of crucial importance, the findings concluded that Coach Meyer, who had undeniably misstated his prior knowledge of the allegations against Zach Smith at the Big Ten Media Days press conference in July, was not “intentionally misleading in his” statements, and that he “did not … deliberately lie.” In the eyes of some Ohio State detractors who have misgivings about the importance of football to Ohio State’s institutional identity, this result was just another example of OSU caring more about winning games than anything else.
But the negative reaction to the findings really has much less to do with animosity towards Ohio State than it does the substance of the report announcing the findings, and the structure of the entity that generated the report. (Evidence for this is found in the fact that one member of Ohio State’s Board of Trustees—a group dedicated to supporting the University—resigned late last week due to the report and the light punishment it led to.) The findings themselves are not particularly plausible given the evidence the independent investigation team had before it. The team, headed by Mary Jo White (a partner at the law firm of Debevoise and Plimpton and a former United States Attorney and Chair of the Securities and Exchange Commission) and David Saratt (Senior Chair of Debevoise and a former Assistant United States Attorney), in concluding that Coach Meyer’s false statements were not deliberate, intimated instead that the statements may have been the product of “memory issues [even as to matters on which he had] prior extensive knowledge of events” and (relatedly) his “periodically tak[ing] medicine that can negatively impair his memory, concentration and focus.” This even though there was no mention of his having taken any medication in the period leading up to the Media Days Event. This even though the precise topic of Coach Meyer’s misstatements—his knowledge of domestic abuse allegations against Zach Smith in 2015—had been the very subject of text messages sent by OSU’s Athletic Director to Coach Meyer literally the night before and morning of the Media Days event. And this even though Coach Meyer is often reputed to be one of the most detail-oriented coaches—in preparation, tactics, strategy, and execution—in all of college football. It’s one thing to suggest that Coach Meyer may have gotten flustered and misspoke at the Media Days Event. It’s another to suggest that he intended to say what he did but that he simply forgot key facts that he lived through and was reminded of by the AD just several hours earlier.
How “Independent” Can It Be?
Perhaps the biggest reason people are (and should be) skeptical of the investigative report is that “independent” investigation teams like this one—and I note, in this regard, that the report for the Urban Meyer investigation team used the words “independent” or “independently” about 20 times in describing the team’s work—are anything but, at least in the sense that they are paid hundreds of thousands if not millions of dollars by their clients (in this instance, OSU) for this project and (hopefully) for future projects for this and similar clients.
Let me be clear: I do not cast aspersions on Ms. White, Mr. Sarratt, or the Debevoise firm. Indeed, from what I know these folks are highly capable and professional lawyers who work for a venerable and highly successful law firm. But that’s what they are – lawyers who work for a pricey law firm. Which means they have clients to keep happy in a given case, and would-be clients to woo in future cases. The pressure on partners in large law firms today—who often charge over $1,000/hour for their services and who often make well into the seven figures—to retain and bring in new business is intense. Indeed, partnership in large firms is much less secure than it was a generation ago, and the overriding consideration for continuing tenure at many firms is what you have done for the firm—in terms of revenues generated—lately. In this environment, it would seem a tall order for lawyers who do investigations in these types of matters—where the results are going to become public and the university would obviously prefer not to have its high-profile coaches and leaders thought of as liars—not to be influenced by the outcome they know would make their client happiest. In addition to these increasingly brutal market pressures is the important fact that lawyers generally serve as advocates for their clients and thus develop an advocacy mindset. This is true even for former prosecutors who are now defense counsel; while they were in the government they may have been zealously pro-prosecution, but making a living representing defendants tends to make one pro-defense.
Even if I am wrong about the magnitude of the implicit yet inevitable bias inherent in large law firm lawyers conducting so-called independent investigations of this kind, the perception of bias among outside observers looms large. And we know that perceptions of independence—or the lack thereof—can be as important in the justice system as actual independence.
How Can Factual Findings Be Determined in a Truly Independent Way?
When our legal system truly seeks independence in resolving legal controversies, it often builds in formal protections to safeguard against outside (including market-based) pressures. Juries, for example, are drawn from a cross-section of the community and are not paid (except a token amount) for their service, much less paid by one of the interested parties. Members of the federal judiciary are given so-called life tenure precisely so that they can decide cases and make factual determinations without having to worry that their livelihoods will depend on the popularity of their decisions. Even in state court systems where judges have to stand before the voters (which might create some pressure to rule in line with popular opinion in high-profile cases), we might try to make sure that the interval between elections is reasonably long. A decent interval means that incumbent judges will have ruled on many matters by the time of any election, reducing (though perhaps not eliminating) the likelihood that any single ruling or set of rulings by a judge will take on inordinate weight in the voters’ minds. By contrast, private-sector lawyers have no guaranteed caseload for any period of time, and have to convince each current or prospective client to use them in every new matter.
Sometimes political protections of independence substitute for legal ones. Take special counsel Robert Mueller. He enjoys no legal protection from being removed if he displeases the head (President Trump) of his client organization (the federal Department of Justice). But there are—as there have been in prior special counsel settings (think Leon Jaworski in Watergate or John Danforth in Waco)—sufficient political costs to influencing Mr. Mueller’s work that people don’t view him as a shill for the administration. (President Trump might not find him credible, but the subjects of investigations are rarely supportive of the investigator; my point here is that political forces insulate Mueller from pressure to exonerate those he is investigating, and in that sense Mueller has just as much real-world independence as did Ken Starr, even though Mueller lacks the statutory protection from removal that Starr enjoyed.)
Obviously, in a situation like Ohio State’s, there are no legal or political safeguards to insulate the private-firm investigators from the overriding financial pressures I have identified above. So what might be a better way to conduct investigations like the one into Coach Meyer’s conduct? Here’s one thought: Many law professors, who already get paid by their universities and who presumably have made their peace with the general level of income they earn, have the expertise and capacity to conduct investigations like these. (A decent percentage of law professors were themselves former government lawyers or worked at large law firms conducting investigations.) And unlike big-firm lawyers, most law professors would undertake such investigations for little or no money, and may very well be open to doing assignments like these while making a public promise of never accepting additional paid gigs by that or similar clients down the road. A law professor—or, better yet, a panel of law professors drawn from across the ideological spectrum and from law schools outside the university whose employees are being investigated—could generate findings that might be seen as more credible than those produced “independently” by a hired and highly paid gun. Just as I have argued that tenured law professors can and should help in improving the quality and integrity of legal journalism because they have both time and a guaranteed steady paycheck, conducting investigations of the kind I describe here is another area in which today’s legal academy could usefully assist.