O'Reilly is peddling the fiction that Wiehl took everything back. He has posted on his website a post-settlement affidavit signed by Wiehl that, O'Reilly's attorney asserted in an accompanying statement, amounts to her “repudiating all allegations.”
The affidavit amounts to no such thing.
“Looking through the linguistic gymnastics here, Paragraph 2 says they have resolved all of their issues. Yeah, that's what you do when you reach a settlement and you agree not to sue,” said Kathleen Cahill, a Baltimore sexual harassment lawyer who reviewed the affidavit at The Fix's request. “And, 'I would no longer make the allegations contained in the draft complaint' — that's not a retraction. After you've resolved all your issues, you are contractually barred from making the allegations. You have signed a release of claims that says, in exchange for this money, I will never bring those claims.
“It's not that you change your mind or you have second thoughts after you get $32 million. You're barred. . . . Of course you would no longer make the claims, because it would be a breach of the agreement and you'd have to give back the $32 million.”
Debra S. Katz, a partner at Katz, Marshall & Banks in Washington, also reviewed the affidavit and concurred.
“What this document is is an attempt to give themselves the kind of talking point that they're now trotting out,” Katz said of O'Reilly and his allies. “But they're silly. You do not pay $32 million if someone has no claims and they've recanted or repudiated those claims. In my experience, defendants do this when they feel they have some media exposure and they want to have something they can pull out.”
Katz said that Wiehl “threaded the needle in such a way that she ended up signing a document that is neither a repudiation nor something that [O'Reilly] should credibly be able to come forward with publicly to say that she has recanted.”
“He probably gave her something that was far broader, far better for him, from a press-relations perspective,” Katz added. “I'm sure it went through many rounds [of negotiation] to get to this non-statement. And I'm sure her lawyer advised her: 'Look, just sign this; $32 million hangs in the balance. And frankly, it says nothing.' She's a lawyer. She's a smart lawyer. And she looked at it and she said: 'Right. I'm saying nothing. I'm certainly not repudiating my claims. This is no recantation. It is simply saying I no longer have claims' — which is a factual statement, when you sign a release.”
The affidavit means that Wiehl can't sue O'Reilly for the sexual harassment claim on which the settlement was based. But Katz said that O'Reilly could expose himself to a different kind of lawsuit by misrepresenting the affidavit.
“What [Wiehl] might be able to sue him for, depending on how much he crosses the line, is if he defames her going forward,” Katz said. “He's getting close by saying: 'She repudiated. She recanted.' She did no such thing. That is potentially defamatory.”