The Killian Documents - Would Forgery Be A Crime?

Perhaps some of our law-bloggers know.

Assuming a forgery, if the docs were not *sold* to CBS (and I doubt they were), what is the crime?

And I ask because, if the only penalty is political embarrassment rather than jail time, the prior probability of a "dirty trick" goes up.

In fact, if the source was a lone-wacko Texas Bush hater, who planted these forgeries in 2001 after Florida, that may not even embarass the Kerry campaign (much). Hard luck for Dan Rather, though.

UPDATE: Eugene Volokh tackles this. My soundbite - maybe, in a couple of states.

UPDATE 2: Perhaps a copyright suit by one of Killian's heirs?

Comments

[Cecil Turner]

Could fall under Hazarding a Vessel . . . because it looks to sink the USS Kerry Campaign. (A good lawyer might be able to get 'em off though, because it was already foundering.)

[Ordi]

Mr Killian widow may have a case against CBS, the DNC and the Kerry Campaign. Defaming and soiling of her dead hubbies image!

[BigFire]

Re: Ordi

I am not a lawyer... Yep. Bush cannot do much against CBS or Boston Globe, he's a public figure. Lt Col Killian is very much a private individual. To be made an unvolunteering member of the smear campaign using forged documents is libelous.

[Bob Hawkins]

These memos purport to be government documents. Even emails sent from DOD computers are considered official documents. Forging official documents has to be illegal.

[The Kid]

Whether criminal or unethical, use of the four forged documents was stooopid. By ignoring the rule that extraordinary claims require extraordinary proof, CBS has sullied its reputation – soiled its undies (as has the Boston Globe) – and ruined Terry McAwful’s strategy of using the Bush AWOL story to chip away at Bush’s lead.

By not objecting to the authenticity of the faxed copies of the CBS documents on Tuesday, the White House let CBS play a bad hand and lose the pot.

What’s also interesting is how the Blogosphere stepped up to the plate. Every hour or so new elements appeared, some were dismissed, but all were treated seriously – there was an earnest search for the truth of the matter. It’s as though the Blogosphere’s sparks started a fire that got some mainstream media pots boiling.

Unpaid volunteers beat the paid professionals. Hats off to the Blogs!

[ordi]

Bob H.

CBS did NOT represent the Docs as OFFICAL DOD (government) documents. They said they were from Mr Killian's Personal Files. The attempt was made to make them appear as if they were offical DOD Docs but they are not. I think, this was a mistaken conclusion we in the Blogs jumped to yesterday while this story was developing.

I come to this conclusion for one reason: It is a FELONY to forge DOD/Federal government documents. Whoever forged them (Rather, McAuilffe, Lehane, Mr Barnes et al)understood the felony part. Forging personal docs is not a felony.

As I posted in the thread below.

I think Mr Barnes was involved in producing the docs. He is the one that changed his story to help Kerry. Plus a women reporting to be his daughter tells an interesting story at

Ben Barnes Daughter: My Dad Lied About Bush

http://www.newsmax.com/archives/ic/2004/9/9/202100.shtml

Also, Mr Hodges was prior military and would have known how to format the memos. I don't think Barnes is prior military so he would not know the correct format. Plus the women sayings she was his daughter, he told her he HAD NOT gotten Bush in TANG but later told her he was going to do this. Plus the book he is writing.

I wonder if this goes as far back as the first cry by the Dems with Bush was AWOL. Hell, they did not know who would be running against Bush but they knew Bush would be running so they set the table with the AWOL charge and only had to bring the Documents out at a convenient time to continue the plan.

[Brian Dupri]

Of course someone will go to jail for this. This person forged a military record, forged an officer's signature.

Secondly, if I was Killians widdow or so I would sue CBS and get their source. Their husband and father's name has been defamed with this forgery.

I would sue for a billion dollars. TAh Reh Zah honey, can I have my allowence for the next 200 years right now?

Read John Kerry's anti-American book The New Soldier and 4 chapters of Unfit For Command online for free

[Bob]

I am a lawyer though not a libel espert. In Ohio where I am and, I believe all states, you cannot libel a dead man. Libel is a personal cause of action. Some states have invasion of privacy causes of action that might be of some use, though I doubt it.

[Bob]

eXpert, not eSpert

[Snowy]

Not all forgeries try to criminally assassinate the character of another human being. IMO, the real crime here is that the forgeries were a frame-up.

[Crank]

Well, if I recall correctly I don't think you could prove federal wire fraud if the forger had no pecuniary interest and had no scheme to defraud others of any property. Bob Hawkins is probably right that even under Texas law there may be penalties for forging documents that purported to be official records (and yes, records of this nature would probably fall under the definition of official records).

On the civil side, Bush could sue at least the forgers for defamation but of course he wouldn't do that since (among other things) it would require him to testify about this whole mess, and under Clinton v. Jones he'd get no allowance for being president if he was the plaintiff in a defamation suit.

[TM]

Well, if this is a crime, a criminal investigator could put people under oath, take statements, and try to deliver the truth that way. But then CBS could fight on it's Free Press protections.

As a civil action, I agree that Bush would be crazy to sue anyone. I suppose the widow or son could argue that they have been harmed, although the "dead men can't be libelled" is interesting.

And the "semi-official" documents idea is interesting - what is the status of private notes produced in an official capacity? And does a "memo to file" become official?

If no one can find a crime or a grounds for civil action, this really was (may have been!) a free shot at the hoop by someone.

[JohnnyL]

Here's one take on this that I haven't seen anywhere. CBS has stated that these documents were "taken" from Killian's personal files. "Taken" ? Suppose for a minute that they were indeed real. How and who "took" the files? "Taken"?...isn't that a euphemism for stolen? Possibly an operation like the plumbers breaking into the Watergate complex looking for incriminating documents.
I for one was almost hoping that the documents were real, as I could just imagine Kerry operatives mounting break ins against all of Bush's associates from the college days forward looking for whatever they could find. Finding out how the documents could have been "taken" from Killian's personal files with out the aid of his widow or son may have been and even juicier story than this one about forged papers.

[bbbeard]

The May 4th memo purports to be an official order from Killian to Bush, not a "memo to record". IF it's illegal to forge Air Force orders, then this would be the smoking gun.

BBB

[bbbeard]

Just browsed the U.S. Code. Title 10 is the Uniform Code of Military Justice -- and I am clueless how this might apply in this case if a civilian is the perp -- BUT the forgery and fraud here are clearly crimes for military personnel:

For instance,
http://www4.law.cornell.edu/uscode/10/923.html
says:
"Sec. 923. - Art. 123. Forgery
"Any person subject to this chapter who, with intent to defraud -
"(1) falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice; or
"(2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered;
"is guilty of forgery and shall be punished as a court-martial may direct."

Also,
http://www4.law.cornell.edu/uscode/10/907.html
says:

"Sec. 907. - Art. 107. False official statements
"Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct."

Anyone out there know how this works if a civilian forges a military order?

BBB

[G. Sabatino]

Wire fraud would be the best bet. I am *NOT* an attorney.

[Brett]

Wrong angles. If CBS knowingly reported false documents in order to have a "big story" and thus gain market share, or failed to take action to redact harms done they are as guilty as Enron of seeking to defraud their customers. And, if their "anonymous experts" can't be found and interviewed they are not credible in the debate. In fact, at this point names must be named. Else CBS is on the hook for these docs until they can point the finger elsewhere credibly.

[J_Crater]

Will first there is "impersonation of a federal officer". In a recent case a man was indicted for claiming to be a military chaplain. Then there is "falsifying a federal document" which may apply to the documents that bear Killian's signature and military rank.

I am not a lawyer, thank God.

[thucydides]

Try New Hampshire Revised Statutes Annotated 666: for anyone to use false documents, including those purportedly signed by someone, to influence an election, has committed a misdemeanor in the case of natural persons, and a felony in other cases.

[thucydides]

Here's the New Hampshire statute:

666:6 False Documents, Names or Endorsement. Any person who shall, without authority, sign the name of another person to any letter or other document, or falsely represent that any other has written such letter or document, knowing such representation to be false, for the purpose of influencing votes, or who shall by false representation, use, employ or assign the name of any other person, or a fictitious name on a radio or television broadcast or other means of communication, to signify endorsement of a political party, candidates or programs, or, for the purpose of influencing votes, shall be guilty of a misdemeanor.

666:7 Publication of Forged Document. Whoever publishes any such forged letter or document, knowing the same to be forged, with like intent, shall be guilty of a misdemeanor if a natural person and shall be guilty of a felony if any other person.

[poppy]

You don't need to sue them.
Bush should demand a retraction and an apology from CBS and the NYT.

Then, if they don't give it...they should be removed from the White House press pool as being DNC operatives rather then reporters. Bush should also not participate in any event where CBS or NYT reporters, newspapers or affliates
are participating, such as debates.

The FCC and FEC should investigate why CBS, as an arm of the kerry campaign, is not acting within campaign finance limits and withdraw their broadcast license.

They can only spend individual contrinbutions, not corporate money for campaign activities such as 60 Minutes.

[Dr. Weevil]

JohnnyL says part of what I was going to say anyway: Supposing they're genuine, who owns them? Either the Killian estate (presumably the widow and/or the son) or the Texas ANG, I assume. Assuming neither gave permission for someone to walk off with them, isn't that theft? With written documents, there's also the question of copyright -- not only who owns the physical memos, but who has the right to reproduce the words quoted on them. Again, I assume either TANG or the Killians, depending on how 'official' these documents were, and (I suspect) whether they were kept on-base or at home and for how long. Of course, all this is moot if they're forgeries, which seems almost certain.

[Paulie T]

Crime or no crime - its time to show CBS the Money - or lack theroeof. Boycott CBS and its advertisers until they come clean!

[Bill Prast]

* United States Code *
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE + PART I - CRIMES # CHAPTER 63 - MAIL FRAUD

U.S. Code as of: 01/06/03
Section 1343. Fraud by wire, radio, or television

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

Who could argue that the RNC is NOT an financial institution? Anyway, it may be a stretch to apply this to an election, but it's a start.

Kerry lied, vets died.....

[Dan]

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