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]

Which state would pursue it?

In my opinion, this is properly a Texas case because the forged documents relate to the Texas Air National Guard, which falls under the aegis of the Texas governor (except when activated for federal service). I believe that is where the investigation ought to start. If Texas authorities develop evidence of criminal wrongdoing involving mail, wire, wireless, Internet, and conspirators in other states, they can bring the other states and the US Justice Department into the mix.

If there is evidence of a criminal conspiracy involving actors using mail, telephones, or the Internet, then we're into the federal realm including a possible RICO prosecution.

Now, I do believe the FBI has enough to begin its own investigation parallel to the Texas investigation. I just don't expect that to happen. I think the US Justice Department will steer very wide of this matter in an election year--especially since Texas can pursue an investigation on its own even if the feds decline. The FBI might assist Texas authorities, but they will be careful not to appear to be Bush's attack dog.

Sadly, I don't expect Texas authorities to do anything either. I wish they would. The point of my essay is to show that Texas authorities could open an investigation if they have the will to do so.

Still, there is precedent for prosecutions of this nature. A few years ago CBS got caught with its pants down when it used a forged documents by a disgruntled former federal employee to falsely accuse a federal border official of not doing his job. The feds prosecuted (which makes sense because the forged document related to a federal agency and federal official) and the forger got almost a year in prison.

[JCEccles]

Not just "in reckless diregard "?

You'd have to check with a Texas prosecutor to get the definitive answer, but my quick look at that part of the penal code defining the mental states necessary to sustain a conviction seemed clearly to require actual knowledge of falsity. If so, reckless disregard won't get the job done.

[JCEccles]

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?

I think the first question is, when did the offense take place? What was the status of the Texas ANG at the time of the offense? That is, when was the document forged and passed on to a third party? That really didn't happen in 1971-74. All indications are that it was forged and published very recently. But I'm not convinced that necessarily settles the overall issue either.

It may be that federal mobilization moves jurisdiction to the feds only with regard to matters and operations related to the mobilization. Jurisdiction over general housekeeping and day-to-day matters may stay with the state. There may be concurrent jurisdiction. I don't know. I agree with you that the jurisdictional call could be a tricky one to make.

[cartoonistx]

[JCEccles]

LOL.

Even Danger Dan's momma wouldn't write a letter like that.