PrintCBS News and the law
Charles Krauthammer calls it "disgraceful." James Pinkerton says it "reeks" of "coverup." Hugh Hewitt labels it "a whitewash that can be summed up this way: 'Blah, blah, blah, blah.'"
All apt descriptions of CBS's "independent" investigation of its own behavior in Rathergate. But is this a surprise? Did anyone really expect an inquiry initiated by CBS and overseen by its law firm to unambiguously declare the mendacious memos to be counterfeits? Or to find that the presentation of such fakes was not, as CBS head Leslie Moonves would have it, a "screw up," but a cold and calculated fraud?
Except at the end of Perry Mason episodes, people don't usually cop to criminal behavior. And criminal behavior there was if Rather and company acted with malice aforethought.
But can malice, an intangible state of mind, be ascertained other than through the method employed by the CBS Panel —— simply asking the accused? Of course it can; jurors make such determinations all the time. They examine evidence and draw inferences about a defendant's "mens rea" or guilty mind.
So consider just this one bit of evidence: Though the Killian memos have been utterly discredited (as Pinkerton puts it, "all but Kool—Aid drinkers" concede the point), Rather defends their accuracy as "right on the money" even now. There are but two possible explanations: Rather is either delusional or he is mendacious. Unless you believe, then, that he suffers from spiked—Kool—Aid—induced hallucinations, you'd have to conclude that he is patently prevaricating. A reasonable inference is that his September 8 fabrications were similarly purposeful.
Dick Thornburgh and Lou Boccardi declined to make such a finding, but they have no exclusive rights to sit on this jury. Those of us who find otherwise —— that Rather and company knew upfront that their memos were fakes —— may now consider some possible charges.
Take 18 US Code 1341, which makes criminal the use of "any counterfeit" article in furtherance of a scheme "for obtaining money or property by means of false or fraudulent pretenses." Rather's counterfeit documents were fraudulent. He obtained money in the course of presenting said documents. The plain language of the statute, then, brings him under its purview.
Then there's 42 US Code 1971: "No person, whether acting under color of law or otherwise, shall ... coerce any other person for the purpose of interfering with that person's right to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President ..." Fraud is a form of coercion. As in the idea of "larceny by trickery," the law recognizes that a "choice" resulting from deception is not freely made.
Another law, 18 US Code 1343, prohibits transmission by "television communication" in an effort "to defraud, or for obtaining money or property by means of false or fraudulent pretenses." New York Times columnist William Safire once suggested that this statute might be used against the forger. But it should apply equally to anyone who knowingly used the forgeries in a television communication.
A news team that defrauds the public to influence an election might also run afoul of the Federal Election Campaign Act, 2 US Code 431, and as a "political committee" under the meaning of the statute be subject to its contribution limitations. The team's aid to a candidate is its "contribution," which under the law includes "anything of value." (It excludes news stories, but an outright fraud is not a news story.)
The drafters of such statutes may not have had these specific purposes in mind, but laws evolve through creative lawyering. RICO was enacted to bring down the Mafia; today it's a tool against terrorists. The tax code was once used creatively against Al Capone.
Justice Dept. prosecutors should do some creative legal research. The Federal Election Commission likewise should pursue its own leads. (Indeed, the non—partisan Center for Individual Freedom has filed a complaint with the FEC charging CBS and Kerry/Edwards with illegal coordination.) Journalists too should get busy —— looking, for instance, for the as—yet—unknown source of the fantastic fakes.
The CBS Panel report ought not be the final word but only the beginning. CBS has examined itself; now bring on the truly independent investigations.
Steven Zak is an attorney in California.
