Rathergate, a Prosecutor's View

longleggedfly ^ | Sep 12, 2004 | JCEccles

[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.