Rathergate, a Prosecutor's View

longleggedfly ^ | Sep 12, 2004 | JCEccles

[JCEccles]

This is the follow-on installment to

In the past few days many people have demanded to know whether criminal charges could be brought in connection with the Rathergate forgeries. That isn’t an easy question to answer. Obviously, not every false statement is prosecutable. In fact, few are, especially false statements about candidates for political office made in the heat of a campaign (the First Amendment raises its own barriers--not wholly insurmountable).

But there is something about the Ra^thergate forgeries that gives rise to an almost instinctive sense that these false statements go well beyond the pale and into the territory of criminal acts.

In my opinion, these suspicions may be well-grounded (note: I am not admitted to the Texas Bar; these opinions are my own and are provided solely for academic purposes to aid in a complete discussion of these vital public issues).

What makes the Ra^thergate forgeries different is that they purport to be official statements of a public officer.

As private citizens we expect our government officials to behave impartially and with impeccable honesty on matters falling within their jurisdiction. If they do not, we may justly demand their removal and, in egregious cases, their prosecution. When they speak on official matters, we expect them to speak the truth so we may rely on their words.

If the commanding officer of a young 1st Lt in the Texas Air National Guard takes the trouble to write a memorandum concerning the duty performance shortcomings of the young officer, we expect the commander’s words to be honest and trustworthy so that appropriate decisions can be made about the officer, his unit, and the greater good of the public he is sworn to serve.

Some Democrats are fond of pointing to the Ra^thergate memoranda and defending them as being true in substance even if they are forged in form. But if the memoranda were in fact not made by Lt Col Killian, they are not true in substance. They are false in the most fundamental way imaginable, for they purport to be the eyewitness first-hand accounts of George W. Bush’s duty performance by the closest person with command authority to him, when in fact they are at best hearsay accounts by an anonymous person not subject to cross-examination whose own credibility is shredded beyond repair by his demonstrated willingness to pretend to be someone he is not. There is no inherent reliability in such statements, for there are no effective controls that might keep objectivity, completeness, and accuracy at the forefront of the inquiry.

In a sense, whoever forged the Ra^thergate memoranda is a sneak thief of the lowest order, for he stole Lt Col Killian’s honorable name, and used it to smear the forger’s political opponent knowing Lt Col Killian is forever silent to protest. Lt Col Killian’s surviving family members are also victims, for they are largely helpless to protect their family name from the effects of this assault.

The two criminal offenses that appear to fit the evidence best are impersonating a public servant and tampering with a government record. The key relevant language is excerpted below. Bear in mind that decisions to investigate and prosecute are at the discretion of the prosecutor having jurisdiction over the offense. There are many reasons why a prosecutor might choose not to investigate let alone prosecute the Ra^thergate memoranda. Contrary to conventional wisdom, the First Amendment does not give a person or news bureau license to knowingly and intentionally lie about a candidate for political office. And where, as here, there are additional aggravating factors at work it is hard to think of a case where an investigation at a minimum is more appropriate.

Impersonating public servant, Texas Penal Code, V.T.C.A. § 37.11

“A person commits an offense if he . . . impersonates a public servant with intent to induce another to submit to his pretended official authority or to rely on his pretended official acts; or . . . knowingly purports to exercise any function of a public servant or of a public office, including that of a judge and court, and the position or office through which he purports to exercise a function of a public servant or public office has no lawful existence under the constitution or laws of this state or of the United States . . . . An offense under this section is a felony of the third degree.”

Tampering with government record, Texas Penal Code, V.T.C.A. § 37.10

“[Anyone who] . . . makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record . . . . [commits a Class B misdemeanor if he] is convicted of presenting or using the record; [a felony of the third degree if he] . . . is convicted of making the record; [and a felony of the second degree if his] . . . intent in committing the offense was to . . . harm another.”

Clearly, if more than one person was involved in making and publishing the forgeries, other charges including aiding and abetting, conspiracy and possibly even state or federal criminal RICO charges might merit consideration. However, almost any prosecution will require proof beyond a reasonable doubt that a person making, publishing, or republishing the forgeries knew in fact that the documents were false. In the case of Dan Rather it would not be sufficient to prove that he was criminally reckless and negligent in failing to check the truth claims of the memoranda.

[JCEccles]

Can you fix the title, please?

I'm posting this here rather than blogside, because it answers a question that has been raised by dozens of FReepers about the Rathergate fiasco, about which I have some expertise.

This is a follow-on to an essay blogside that may be found here

[trek]

I raised this very question with my brother who is a law professor at a major university. Here is his reply (verbatim)

Whoever made the documents is probably criminally liable, because there are statutes against forging military records. But as for the USE of the documents: as far as I know, there is no criminal liability. If Bush sues for slander, there could be a civil action. The FCC could undertake a license revocation procedure. But I doubt whether there is anything criminal involved. If there was, I suspect that it would have shown up on FR.

So just sit back and enjoy the carnage.

[counterpunch]

What about good ol' fashioned forgery and wire fraud?

[inconspicuous]

very nicely done...it seems that a fraud has been perpetrated upon the entire country as a means to effect the outcome of a federal election...CBS will hide it's document source from the feds as long as they can...

..."we can't find him, 'cause he's left town!"...

[woodb01]

If the documents in question, are conclusively proven to be a fraud, there are SEVERAL criminal laws that come into play...

These are FEDERAL laws that may have been violated. And this was NOT an extensive search. There may also be many FCC communications rules and regs that were violated as well.


18 U.S.C. 371 - Conspiracy to commit offense or to defraud United States - Fines and up to 5 years in prison
18 U.S.C. 372 - Conspiracy to impede or injure officer - Fines and up to 6 years in prison
18 U.S.C. 494 - Contractors' bonds, bids, and public records
18 U.S.C. 506 - - Seals of departments or agencies (this MIGHT include the military signatures and military branch)
18 U.S.C. 1001. - Statements or entries generally (Fraud)

[counterpunch]

That sounds correct to me.
Perhaps I'm thinking a few steps ahead of others here, though I doubt it.
I'm not interested in going after Dan Rather. The man is an old fool and he is doing more harm to himself than any verdict ever could.

I am concerned about exposing the source and chain of custody of these forgeries. I believe the DNC and Kerry campaign were involved. They may not have personally printed them up in MS Word, but if they were involved in passing them along, then that is good enough.

Since Rather and the producers of 60 Minutes posses knowledge of at the very least the last party in the chain of custody of this fraudulent document, then they should be forced to divulge this information in a criminal investigation or face obstruction of justice charges. They hold the first clue in tracing these documents back to the forger.

[JCEccles]

What about good ol' fashioned forgery and wire fraud?

Good point. However, fraud and most garden variety forgeries require proof of an intention to deprive the victim of property or money. There might be a novel or esoteric way of pleading and satisfying that element in this case, but I can't think of one right now.

[Graybeard58]

CBS will hide it's document source from the feds as long as they can

Or their source may develope a fast acting fatal disease.

[JCEccles]

I looked at the federal statutes too. But my opinion at this point is this is more properly a state criminal case.

Now, I can see potential federal civil claims and if I represented the Killian family that's where I would take them.

[JCEccles]

. . . it seems that a fraud has been perpetrated upon the entire country as a means to effect the outcome of a federal election

As much as I hate the idea of over-legislating, I'm tempted to agree with you. There seems to be a gap here that should be filled. Maybe Congress needs to look at this.

The First Amendment would make any such legislation problematic.

[Fester Chugabrew]

There might be a novel or esoteric way of pleading and satisfying that element in this case, but I can't think of one right now.

I'm sure we can find a few federal judges to help us out here. /s

[woodb01]

You are correct that it would be very DIFFICULT to get a US Attorney to take up this case, BUT, the publicity of a Writ of Mandamus, and a Writ of Quo Warranto (asking by what authority do they ignore these attacks on both the military and commander in chief) would provide enough publicity that a US Attorney just MIGHT take them up.

A civil action would be ideal, but it would require one of the wronged parties, the relatives, general, or the pres (which won't happen), to initiate the action...

[Hank All-American]

Has anybody looked at RICO? Criminal law is not my specialty, but I think we probably can meet the predicate-acts requirement. If you can prosecute abortion protesters, I think someone could put together a case against CBS. I would love to have CBS news labeled a "corrupt organization."

[counterpunch]

But my opinion at this point is this is more properly a state criminal case.

Which state would pursue it?
Texas?
New York?


Where did the documents originate from, and how did they find their way to CBS in New York?
By wire?
By mail?

To me, it seems like this case goes beyond the borders of just one state.

[Malesherbes]

I have dream! Dan Rather doing the perp walk on Fox News.

[olinr]

"But my opinion at this point is this is more properly a state criminal case."

This depends on the status of the 111th Fighter Inteceptor Squadron. Was the squadron on federal active duty, performing duties for the U.S. Air Force, or only on Texas active duty, or reserve status? Many questions lumped into to one!

In California, several situations will cause the status to be paid by the State of California; others would be reimbursed by the Federal Government. If GWB was on Federal orders to fly, in alert status, then the documents would be under the cover of the Federal Government. This must be determined. Regardless, the seriousness of the crime (felonies) must be persued. Alas, it won't because Republicans are in charge; not too many patriots!

10 years USAF Vet, one year California ANG.

[bvw]

knew in fact that

Not just "in reckless diregard "?

[William Tell]

One possible legal step would be the impeachment and trial of George W. Bush for desertion. Certainly that would be a "high crime". We could witness the Senate carrying out its duty as a finder of fact. One of the first witnesses would be Dan Rather.

I'm thinking that there would be an acquittal.