Fakegate: why the perps should be prosecuted (Guest post by Christopher Monckton of Brenchley)

Yesterday I had the pleasure of chairing a packed meeting in the Palace of Westminster (don’t tell the Clerk of the Parliaments), at which Professor Richard Lindzen of MIT spoke even more brilliantly than usual on “global warming”, and engagingly answered many questions from Parliamentarians and the public.

Afterwards, Dick went to brief a Cabinet Minister (who shall be nameless, but he is a good egg, and privately regards catastrophic manmade “global warming” as nonsense). The Minister indicated – in effect, and with scarcely-concealed regret – that the party line set by David Cameron in response to various opinion polls, focus groups and other such artifices for identifying and following a consensus rather than setting a lead, and not the objective scientific and economic truth, was likely to remain the basis of UK climate policy.

In reality, orders issued to our elected nominal “government” by the hated, unelected Kommissars of the EU, our true government, who have exclusive competence to decide and dictate the UK’s environment and climate policies, are and will remain the basis of UK climate policy, regardless of what (or whether) Cameron and his vapid focus groups think (if “think” is the right word). Government of the people, by the people, for the people has perished from this once-free, formerly-democratic corner of the Earth. We have all the trappings of democracy and none of the reality.

Over tea and scones at the National Liberal Club while Dick was with the Minister, several of us discussed what we call Fakegate – the frauds recently perpetrated to the detriment of the blameless Heartland Institute. Among some there was a feeling, often expressed by the nicer but more woolly-headed and ineffectual sort of skeptic, that somehow scientists who commit frauds ought not to be prosecuted for them, for otherwise academic research would become impossible.

I hear this unsoundly-founded point so often that it is hard to keep an even temper. A fraud is a fraud is a fraud, whether perpetrated by a scientist or by anyone else. The mistreatment to which the Heartland Institute has been subjected by a fraudster and counterfeiter constitutes several serious, imprisonable offenses, known in US law as felonies. The perps, whoever they be, should be investigated, brought for trial, prosecuted, and fined or – better still – imprisoned. Punishment for specific, manifest scientific frauds in no way prejudices, compromises, or trammels the freedom and purity of academic research. It protects and enhances them.

Three frauds are evident in Fakegate. First, wire fraud by whoever used electronic means to obtain internal documents that were the property of the Heartland Institute by what the ineffable Richard Black of the unspeakable BBC calls “subterfuge” and what the criminal law bluntly calls “deception”. Secondly, circulation of a counterfeit document purporting to be a true Heartland document. Thirdly, reporting of the affair with reckless disregard for whether the counterfeit document was genuine on the part of the loony-left BBC, the Pooterish Scotsman, Britain’s Marxist daily The Guardian, and various blogs, notably the relentlessly malevolent and consequently uninfluential Desmogblog.

Title 18 (Crimes and Criminal Procedure), Part I (Crimes), Chapter 63 (Mail Fraud and other Fraud Offenses) of the US Codex Iuris deals with “Mail Fraud and other Fraud Offenses”. Paragraph 1341 defines “fraud” simpliciter:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property” [or, by Paragraph 1346, “the intangible right of honest services”] “by means of false or fraudulent pretenses, representations, or promises, or to … procure for unlawful use any … article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, … or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by … such carrier according to the direction thereon, … shall be fined under this title or imprisoned not more than 20 years, or both. …”

In general, whoever knowingly perpetrates across state boundaries or recklessly perpetuates a deception calculated to cause financial or pecuniary advantage in goods or services to some or suchlike loss to others commits the Federal criminal offense of fraud.

If the deception be furthered by electronic means, it is wire fraud. If it be furthered by the use of counterfeit documents, it is a distinct count of fraud. If it be furthered by reckless and detrimental publication and repetition of the contents of counterfeit documents as though they were the real thing, when no steps before publication had been taken to verify that the documents relied upon were true, it is also fraud.

Let us begin with the wire fraud. The relevant US statutory offense seems to me to be 18 USC 1343 (Wire Fraud) of the US Codex Iuris, which opens with these words:

I am unfamiliar with US law, and cannot confirm that these provisions still stand part of the US code, or that they have not been amended, or that there is no case law or rule of interpretation preventing their application in the present case. On the face of it, though, the obtaining of documents that were the property of the Heartland Institute by a scheme or artifice whereby the fraudster misrepresented himself as a Board member of the Heartland Institute was achieved by electronic means across state boundaries between the Pacific and the Great Lakes.

The term “interstate commerce” is interpreted latae sententiae in US law, since it is widely defined in the US Constitution itself. Therefore, the fraudster would not be able to escape a wire-fraud charge by asserting that his deception of the Institute was not “in interstate commerce”. Even if the court were to find that the deception was not “in interstate commerce”, the deception would still constitute fraud simpliciter under paragraph 1341 of the Code, though not wire fraud under paragraph 1343.

Next, the fraud arising from the creation and circulation of the counterfeit document. Whether or not the fraudster who deceived the Institute also uttered the bogus document, he certainly circulated it. Consequently, even if he thought but did not know it was genuine, his reckless circulation of it without having verified that it was genuine, and in the company of other documents obtained by fraud, would constitute a distinct but connected fraud charge – and, given the malicious content of the counterfeit document and the very grave harm that it was calculated to do to the Institute, a very serious charge at that. The court would also take account of the fact that the perp had obtained all documents but the counterfeit document from the Institute and was, in the circumstances, under a particular duty to verify the genuineness of the document before circulating it with the others.

Finally, there is the fraud perpetrated by the various news and internet media, especially in the UK (where Marxism is many journalists’ creed) in perpetuating the Fakegate fraud by rushing to publication or broadcast without having verified the genuineness of the document that turned out to be counterfeit. Here, the well-established legal doctrine of mens rea applies. To commit a crime, one must know that one is committing a crime, or one must act in a manner calculated to cause harm to another while being reckless as to whether the harm that one’s actions are calculated to cause constitutes a criminal offense.

Fraud charges against the guilty news media and blogs would not be likely unless and until the Fakegate fraudster had first been brought to justice before a Federal court.

The dripping malevolence of the commentaries by the various news media and blogs on what the counterfeit document purported to reveal about the Heartland Institute’s supposed attitude to the teaching of science in schools would count very much against them in court. The intent to cause harm to the Heartland, and to cause collateral damage to Anthony Watts and others, is very clear. On the other hand, those who at least acted promptly by publishing Heartland’s announcement that the document was counterfeit will have mitigated their crime to some extent. Those blogs that continue to publish the counterfeit document rather than removing it, and one blog that pretended to “confirm” the document as genuine, will face long prison sentences.

Or will they? Much of the scientific criminality surrounding the “global warming” scam only happens because the fraudsters in white lab-coats reckon that they are untouchable. They have the protection of governments, who are themselves profiting mightily by the scam; they are fawned upon by the news media, much as Al Capone was in Chicago; they are lionized by their academic institutions for the massive government grants they attract to investigate what, day by day, becomes more visibly a teacup tempest rebranded as Apocalypse; and, worst of all, the skeptics who ought to report the frauds – and without whose reports the authorities are unlikely to act ex proprio motu – are a bunch of wee, cowering, timorous beasties.

Since fraud across state boundaries is a Federal offense, any citizen of the United States, whether or not he is in any way connected with any of the parties to the frauds, has the right – and the duty – to go to his nearest police station and make a complaint that frauds have been committed to the detriment of the Heartland Institute. The complainant does not need to have any connection with the Institute, nor any permission from it. He just has to be as outraged as I am.

All he has to do is to go in and ask the police to investigate the frauds that have occurred. The facts are plain enough, and so is the law. The police will be bound to investigate and to pass a report of their investigation to the District Attorney, who, in matters of interstate fraud, would be likely to consult the State’s Attorney General. On the facts as I now have them, prosecution would certainly result, and conviction would be very likely.

But will anyone act? Around the fragrant tea-table overlooking the silent Thames, there was a marked reluctance to do anything other than talk about it. One said, “I couldn’t possibly make a complaint. Just think of all the unwelcome publicity.” In fact, there would be no publicity, since any complainant not connected with the Heartland Institute will play no further role in the case once he has undertaken the simple duty of reporting the fraud to his friendly, local police station.

Another said, “We really mustn’t interfere with academic freedom in this way.” Yet the action of the fraudster was not an exercise of academic freedom, still less a triumph for it. It was an abuse of it. It was a fraud. It was an offense. It was a serious offense. Read the Code.

The law, said Cicero in a beautiful passage in his De Legibus, is founded upon and rooted in love. And what is a sin? In Christian theology it is a failure of love. A sin is a sin because its fake-etrator is knowingly or recklessly doing harm and, to the extent of the harm done, is failing to love the victims of his wrongdoing. It is precisely because of the harm done to the Heartland Institute and to Anthony Watts and others that the sin – in law the offense – is grave. And it is precisely to prevent such harm from being done that the law provides punishment for fraudsters – as long as someone, anyone, has the guts to go into a police station and start the ball rolling by making a complaint.

If just one or two of the numerous scientific frauds that are being reported to me were instead reported to the police, and if prosecutions and convictions were to ensue in just one or two cases, the “global warming” scam would come sharply to an end. Those scientists working in climate and related fields who have acted or published fraudulently (there are just a few of them, and they know who they are) would once again be reminded that they are not an untouchable, priestly caste at liberty to ignore the laws that the rest of us must follow. As the late Lord Denning used to say, in that gentle Hampshire accent of his, “Be you never so high, the law is above you.”

Meanwhile at the DeSmog Blog:

Heartland Demands DeSmogBlog Remove ''Climate Strategy" Document

***************************EXCERPT*****************************************

19 February 12

DeSmogBlog will leave them in place - in the public interest

Heartland Institute general counsel Maureen Martin has sent letters to the DeSmogBlog and several other publications demanding that we remove all Heartland-related documents that we posted on February 14, as well as all related commentary.

After due consideration, we could see no basis in fact or law for Heartland's demand that we remove these documents.

The Heartland letter is reproduced in full below with our observations.

Re: Stolen and Faked Heartland Documents
http://www.desmogblog.com/heartland-insider-exposes-institute-s-budget-and-strategy
Dear Mr. DeMelle:
On or about February 14, 2012, your web site posted a document entitled “Confidential Memo: 2012 Heartland Climate Strategy” (the “Fake Memo”), which is fabricated and false.
On or about the same date, your web site posted certain other documents purporting to be those of The Heartland Institute (“Heartland”). Heartland has not authenticated these documents (the “Alleged Heartland Documents”).
Your site thereafter has reported repeatedly on all of these documents.
Heartland almost immediately issued a statement disclosing the foregoing information, to which your web site has posted links.

DeSmogBlog: As soon as we learned that Heartland claimed the Climate Strategy document was "fake," we posted a story, informing our readers and linking to Heartland's claim.

It has come to our attention that all of these documents nevertheless remain on your site and you continue to report on their contents. Please be advised as follows:
1. The Fake Memo document is just that: fake. It was not written by anyone associated with Heartland. It does not express Heartland’s goals, plans, or tactics. It contains several obvious and gross misstatements of fact. Publication of this falsified document is improper and unlawful.

DeSmogBlog: Heartland has never identified the alleged "obvious and gross misstatements" in the "climate strategy" document. We have not identified any. Neither does Heartland specify anything "unlawful" about publication of the "climate strategy" document.

2. As to the Alleged Heartland Documents your web site posted, we are investigating how they came to be in your possession and whether they are authentic or have been altered or fabricated. Though third parties purport to have authenticated them, no one – other than Heartland – has the ability to do so. Several of the documents say on their face that they are confidential documents and all of them were taken from Heartland by improper and fraudulent means. Publication of any and all confidential or altered documents is improper and unlawful.

DeSmogBlog: Since Heartland does not know whether the "other documents" are fabricated, altered or authentic, we are at a loss to understand how Heartland is in any position to allege that the documents posted on DeSmogBlog were obtained by "improper or fraudulent means."

3. Furthermore, Heartland views the malicious and fraudulent manner in which the documents were obtained and/or thereafter disseminated, as well as the repeated blogs about them, as providing the basis for civil actions against those who obtained and/or disseminated them and blogged about them. Heartland fully intends to pursue all possible actionable civil remedies to the fullest extent of the law.

Desmogblog: Again, since Heartland does not know whether the "other documents" are fabricated, altered or authentic, we are at a loss to understand how Heartland can allege that the documents were obtained or disseminated "in a malicious or fraudulent manner."

Therefore, we respectfully demand: (1) that you remove both the Fake Memo and the Alleged Heartland Documents from your web site; (2) that you remove from your web site all posts that refer or relate in any manner to the Fake Memo and the Alleged Heartland Documents; (3) that you remove from your web site any and all quotations from the Fake Memo and the Alleged Heartland Documents; (4) that you publish retractions on your web site of prior postings; and (5) that you remove all such documents from your server.
Please do not hesitate to contact me if you require any further information.
Very truly yours,
Maureen Martin
General Counsel

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