"The Betrayal of Joe Paterno" Chapter Seven: The Freeh Report

CHAPTER SEVEN: THE FREEH REPORT

One of the more amazing elements of this entire saga is that Louis Freeh is somehow still perceived as a highly respected and credible investigator. Quite literally, it would be difficult to find a more suspect investigative history from someone who had once been the director of the modern FBI. Had the media wanted to do so, creating the narrative that Freeh is a fraud would have been far easier than the one they concocted that Joe Paterno was obviously a pedophile protector.

Freeh played important roles in the Richard Jewell and Waco fiascos, has been accused (rather ironically) of a massive cover-up at the FBI by respected agency whistleblower Fred Whitehurst, and has had the results of at least two other paid for reports roundly condemned and reversed. And yet, despite all of these reasons to inherently question everything Freeh says, when it came to the Penn State investigation the media might as well have been shaking their pom-poms as they actively cheered his conclusions without a hint of skepticism.

Even without his highly questionable past, several elements of Freeh’s role at Penn State should have instantly discredited him. First, he was being paid $6.5 million (as well as being indemnified against any lawsuits) by the Penn State Board of Trustees which had a massive conflict of interest in this matter because they had an obvious incentive to justify their original actions against those who were being investigated. Freeh’s contract even specifically states that he was to look into and correct the “failures” that occurred, and the board promised “full accountability” for “those responsible” in a statement released at the time Freeh’s investigation was announced. This of course makes it rather clear that the board had no interest in a report which simply concluded, “Hey, it turns out that Sandusky just fooled everyone.”

Freeh himself had conflicts of interest involving his own corporate connections to some of those on the board and to Penn State itself which were likely strong enough to have, in a normal world, required his recusal (though I am not in the conspiracy camp which believes that these conflicts, such as his past association with MBNA which was a major sponsor of the Second Mile, were directly why Freeh came to the conclusions that he did).

As for the investigation itself, it was highly suspect. Only one person closely involved in the case, Graham Spanier, was even interviewed. He was spoken to only a few days before the report was released and his contributions were barely mentioned. Meanwhile, apparently hundreds of other people were interviewed, but neither their identities nor their possible relevance to the Sandusky case are even publicly known.

It appears from at least some of those who said they were interviewed by the Freeh group that investigators initially spent an enormous amount of time and effort not focusing directly on a Sandusky cover-up, but rather on the silly notion that the corrupt “football culture” at Penn State had become too important and influential at the school. Many of the interviewees said that the questions they got had nothing at all to do with Sandusky and that the interviewers had a clear anti-Paterno agenda.

Reading between the lines, it certainly seems that Freeh wanted to make sure he gave those who hired him at least something on which to justify their firing of Paterno, before they finally got some “evidence” to back up a theory of an active cover-up in the Sandusky case and then quickly switched their focus. But very few people realize that they only got that “evidence” because of the very suspects who they accused of running the cover-up to begin with.

Freeh laughably claimed to have examined well over three million emails and documents, which is mathematically impossible in the short time frame they had, unless “examined” means that some sort of simple key word search was done by a computer. It also seems pretty clear that the three vague emails that he actually relied on for his cover-up theory came directly because Gary Schultz had apparently saved them when the university had changed its computer system in 2004. Not only did Schultz save these emails as well as many other documents related to Sandusky in a file prosecutors accusatorially referred to as “secret,” but he also failed to have them destroyed in the ten months between his grand jury testimony (when it should have been obvious that the “cover up” was blown) and his own indictment. Schultz is also the person who appears to have, at least indirectly, caused them to be handed over to Freeh.

How exactly all of this is consistent with running a cover-up has never been fully explained, in all likelihood, because it can’t be.

As for the emails themselves, as I have already documented, Freeh’s nefarious interpretation of them is highly suspect and almost comical. He did not even speak to Paterno, Curley, Schultz, McQueary or Sandusky and so there was no way for him to have any clue about their context, or even define their specific subject matters. He then took what should have been, at best, investigative “leads/clues” and somehow used them as the entire basis for incredible and extreme conclusions.

A remotely fair investigator would have seen those emails and said, “Ok, these are interesting, I think I need to find out more about them or see if I can make them fit logically into a larger narrative consistent with the known evidence.” Instead, Freeh decided that he had all the information he wanted/needed in order to come to the conclusions that he was obviously all too happy to embrace.

The fact that Freeh agreed to abide by a request from Attorney General Linda Kelly to not speak to Mike McQueary is particularly remarkable and important to understanding how amazingly flawed and compromised the Freeh Report really is.

First, it demonstrates, at best, an unhealthy connection to the prosecution in the case against the very Penn State administrators about whom Freeh was supposedly doing an “independent” report.

Ironically, using Freeh’s own “logic,” congratulatory emails later revealed to have been exchanged between the Freeh team and the attorney general’s office after Sandusky’s conviction go further in “proving” a “conspiracy” between these two offices than the emails he used to “prove” a Penn State cover-up.

Where this sort of collusion goes from a theoretical problem to a practical one is when Freeh has an email from Curley saying “after speaking with Joe” he has decided to change the plan, while the AG’s office has a police interview with Paterno (which I revealed earlier) clearly saying he had no further contact with Curley on the matter. Somehow Paterno’s statement to the police directly contradicting that email mysteriously did not make it into Freeh’s report. That is when a conflict of interest turns into flat out misconduct.

Secondly, it raises vital questions about why the AG’s office was so unwilling to have McQueary be interviewed again. What were they possibly afraid of? The only rational explanation is that they were extremely anxious that McQueary, now with some time to think about events and after all the devastation which had occurred largely because of his testimony, might once again shift his story in a way which would cause problems for them.

I also think it is quite possible that Freeh didn’t want to speak to McQueary (and therefore was all too willing to use the AG’s request as an excuse not to) because doing so would have destroyed any remotely logical theory of a Penn State cover-up of the Sandusky case.

While there are hundreds of data points which are problematic to Freeh’s cover-up theory (such as, a complete lack of a remotely rational motive to cover up for an ex-coach with whom no one was even friendly), none is more fundamentally devastating than the fact that Mike McQueary, despite a huge financial incentive to do so in his current lawsuit against Penn State, has never claimed in any way that he was forced to be part of a conspiracy of silence. In fact, McQueary has proactively said that no one ever even told him to keep quiet about what he saw.

If there was one question I wish I could get the anti-Paterno media to answer in all of this, it would probably be, “How do you have any sort of a real cover-up without the only witness to the crime being involved?” It is a question which, in my strong opinion, has no remotely plausible answer.

To be clear, we don’t just know that McQueary wasn’t part of a cover-up because he doesn’t claim to have been. There is a plethora of other evidence to support this assertion.

After all, if McQueary had been part of a real “cover up” (even one of the “soft”  “wink/wink nod/nod” variety) he not only would have been told to be quiet, he would have gotten Kenny Jackson’s open job far sooner than the three seasons later when he finally did. And certainly almost ten years afterward when he was subpoenaed to testify in the Sandusky case, his boss, Joe Paterno, would have spoken to him to make sure he at least toned down his recollection of events. And surely once Curley and Schultz (who for some strange reason decided to not even bother to hire their own lawyers for the proceedings) got blindsided in their grand jury testimony with overwhelming evidence that McQueary had “flipped” on the cover-up, someone would have spoken to Mike to see if they could get him to revise his story. And certainly Joe Paterno, had he been part of the cover-up, would have contradicted McQueary’s story, especially in his last police interview when he had to know with certainty that the cover-up was about to completely fall apart.

But none of that came close to happening and, in the case of Paterno specifically, he actually went in the exact opposite direction of what would have been in his own obvious self-interest.

This may be surprising, but I will be the first to admit that some of the actions of Curley and especially Schultz do look rather suspicious in retrospect. I even think it is possible that there may have been some willful/hopeful ignorance and after-the-fact self-protection going on with them (especially Schultz). However, unless and until you can explain how McQueary (and Paterno for that matter) were left out of the cover-up, you just can’t credibly claim a cover up actually happened. In a sense, doing so is like looking at Curley and Schultz as two atoms of hydrogen and saying that they themselves make up a water molecule (H2O). Without the one essential atom of oxygen (McQueary) you can simply never have water (a cover-up).

And yet, conveniently Freeh never even bothers to confront this rather obvious problem and the media, of course, was to busy cheering him on to even notice or care about the issue.

There is no better evidence that Freeh had to know just how flawed his report was than the way he chose to roll it out and then react to its eventual criticism. If you were about to accuse several prominent people with previously sterling reputations of purposefully covering up and enabling a child molester and you were really confident in your findings, I doubt you would feel the need to do any of the following things:

• Leak one set of emails several days before your report is made public to let the media lay the groundwork for your conclusions.
• Leak the summary of your report early the morning of its release to a highly suspect entity (the tabloid website Deadspin) which was chosen not for its prestige but rather because you knew that they would be most likely to cheerlead rather than question.
• Release the 267-page report at 9 am (with a computer glitch which made it difficult to get to it even then), less than an hour before your press conference so that no one could possibly have a chance to read it all before asking questions.
• Despite numerous objections to your conclusions being highly questionable, and plenty of media outlets willing to give you the softball treatment, you never do even one interview about the specifics of your report, even eventually rejecting requests from highly respected original Freeh supporter Bob Costas.
• When the Paterno Report finally comes out in response to what you did, you release an extensive written statement, with several inaccuracies, less than an hour after its release, meaning that you didn’t even pretend to read it.

And yet, amazingly, all of those things are exactly what Louis Freeh did. Even more astonishing is the fact that the media never called him on any of it.

Instead, the media was so eager to do Freeh’s dirty work for him that they actually reported allegations against Paterno which were specifically contradicted in the report that they clearly didn’t have the time or the inclination to read. The most glaring example of this remarkable development came in regard to what might have been Freeh’s most important revelation and one which actually exonerates Paterno on a key point.

As stated previously, Freeh was able to show that the 1998 investigation of Sandusky had nothing to do with Paterno starting the discussions about Sandusky’s retirement because that came a couple of months before the episode which instigated that inquiry. This is a critical point because it effectively stops the domino theory of a conspiracy to cover up Sandusky’s crimes from ever really getting started, at least with regard to Paterno.

However, ESPN reporter Jeremy Schaap didn’t bother to wait to read the entire report before breathlessly jumping to conclusions (and then reporting them seven minutes before Freeh’s press conference began) by skimming the summary on his phone while standing outside the hotel where the report was being released. Schaap, who had been a harsh critic of Paterno when the story originally broke, obviously was extremely prone to believing the worst about him. When he saw a negative reference to Sandusky’s retirement in the summary he rushed on the air with what he probably felt was a safe presumption (a bystander emailed me to claim that they actually asked Schaap while he was in between live shots whether he had read the full report and Schaap allegedly told him that he had only absorbed the highlights of the summary).

Schaap dramatically declared that Freeh had proven that the claims of Paterno supporters that there was no connection between the 1998 investigation and Sandusky’s retirement “were lies.” As far as I could discern from my research, there was no correction made by anyone at ESPN when it was later determined that in fact Freeh essentially concluded the opposite of Schaap’s report.

Perhaps even worse than that, Brent Musburger, a long-time friend of Paterno’s, went on ESPN soon after Freeh’s press conference and repeated almost exactly what Schaap had said (weeks later Musburger quietly did say that he thought that Paterno had probably been treated too harshly in all of this). After Schaap and Musburger made these devastating accusations so prominently, who knows how many other reporters and even loyal Penn State fans presumed that it must be true (one of the ways that the lazy media works is that if something gets reported by a “reputable” outlet and it makes sense in the larger narrative of what they want the story to be, then there is no real need to waste time and energy checking the validity of the report before going with it yourself).

In general, the media reaction to Freeh’s report and press conference was more unanimous and enthusiastic than MSNBC reporting on a speech by President Obama (I use the term “unanimous” literally here; that weekend’s edition of Face the Nation on CBS somehow booked a panel of five “commentators” who were all rabidly anti-Paterno, one of whom, Buzz Bissinger, would submit himself to rehab, for issues which may explain his extreme hatred of football, less than a year later). Freeh not only had absolved the media of any guilt that they may have had for rushing to judgment against Paterno the previous November, but now he was also providing them with a whole new juicy storyline to fill the summer doldrums perfectly timed before the Olympic Games began.

The press conference itself should have provided the media all sorts of fodder for attacking Freeh’s credibility. One particular response he gave should have, on its own, destroyed it.

When asked about the alleged “Penn State football culture problem,” Freeh decided to use the story of the two Penn State janitors who were supposedly so fearful of being fired by Joe Paterno that they did not report seeing Sandusky having oral sex with a boy late in 2000. Freeh made it sound as if this incident was the smoking gun of both the cover-up as well as how deeply corrupt the entire program had become under the all-powerful Paterno.

However, Freeh’s answer revealed an astounding lack of knowledge of that case (assuming he wasn’t just lying) as well as breathtaking hypocrisy.

Freeh gave the clear impression that he thought that his people had interviewed two janitors who witnessed this event. That would have been rather impossible because there was only supposedly ever one direct witness (and no victim) to that episode and he had been in a nursing home with dementia for quite some time. This was hardly the only occurrence when Freeh was exposed as lacking the basic facts of the case. The report itself blatantly mischaracterized the crimes committed against Victims 5, 6, and 7. 

Perhaps even worse than his factual inaccuracies, Freeh praised the janitors for coming forward, even though they had absolutely done no such thing back when it could have actually mattered and had never made any sort of contemporaneous report of what allegedly happened.

Considering how he attacked Penn State for not going to the authorities with the McQueary allegation, Freeh’s double standard on “not reporting” is rather staggering here (as well as remarkably convenient considering that he knew exactly where his employers wanted the finger of blame to be pointed, and it wasn’t at the janitors).

Also left out of his analysis was that the janitors weren’t even under the jurisdiction of Paterno (the one who allegedly witnessed the event was only a temporary employee to begin with and left soon after the “episode”), there was no evidence Paterno ever fired anyone for simply bringing him bad news, and in 2000 Sandusky was an ex assistant coach whom Paterno didn’t even like, so how the janitors could have been afraid of anything here is, at best, a mystery and more likely nothing but another part of Freeh’s fantasy.

Interestingly, and all too typically, I spoke to the reporter (Stu Bykofsky of the Philadelphia Daily News, who I knew a little bit from my time working in radio and TV there) who asked Freeh the question which provoked this telling response. I asked him if he knew of the profound problems with the answer he received from Freeh. He said he was not aware of them and rudely indicated that he had no interest in hearing the details. Later, when I tried to revisit the issue with him when Bob Costas did his special on the Freeh Report, he actually wrote to me, “I don’t care if Freeh lied.” It appeared to me that, like so many reporters I would encounter over the next year, he already had the story he wanted and he was sticking to it no matter what.

This would hardly be the first or the last time that I would learn that, at least in this story, the facts and the truth really have no influence on how people perceive what happened here; especially on those in the news media.

CHAPTER EIGHT: THE NCAA