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Wednesday, September 15, 2004

Dan Rather was complicit in defrauding the American public in an attempt to defeat a sitting President. Rather must be fired now. Congress should subpoena CBS News' lawyers and all documentation of their advice.

I try to be fair-minded.  I try not to reach snap judgments.  I try to "see the other side."  I try not to overstate.  But in this post, I will express opinions that are as blunt and as strongly felt as any I've ever stated in my life.  Nothing in this post is sarcasm or snark.  This is as serious as a heart attack — and it's no longer funny to me, but a national disgrace and a national tragedy.


On Thursday, September 9th, I wrote a post entitled, "Burden now on CBS to authenticate its documents lest it become a co-conspirator in fraud."

In hindsight, I was clearly wrong.

I gave CBS News and Dan Rather the benefit of the doubt — the presumption that they did not know the Killian memos were forgeries when they ran their hit piece on "60 Minutes II" on the previous evening.  I argued that because of the doubts immediately raised about the authenticity of the memos, CBS ran the risk of becoming a co-conspirator in the fraud perpetrated by whoever forged them.

But Dan Rather and CBS News had become co-conspirators by the time of their broadcast.  ABC News has revealed that two of the experts whom CBS News consulted before running the broadcast — Emily Will from North Carolina and Linda James of Plano, Texas — could not and would not authenticate the fraudulent Killian memos, and expressly told CBS that.

From Ms. Will:

Emily Will, a veteran document examiner from North Carolina, told ABC News she saw problems right away with the one document CBS hired her to check the weekend before the broadcast.

"I found five significant differences in the questioned handwriting, and I found problems with the printing itself as to whether it could have been produced by a typewriter," she said.

Will says she sent the CBS producer an e-mail message about her concerns and strongly urged the network the night before the broadcast not to use the documents.

"I told them that all the questions I was asking them on Tuesday night, they were going to be asked by hundreds of other document examiners on Thursday if they ran that story," Will said.

But the documents became a key part of the 60 Minutes II broadcast questioning President Bush's National Guard service in 1972. CBS made no mention that any expert disputed the authenticity.

From Ms. James:

A second document examiner hired by CBS News, Linda James of Plano, Texas, also told ABC News she had concerns about the documents and could not authenticate them. She said she expressed her concerns to CBS before the 60 Minutes II broadcast.

"I did not authenticate anything and I don't want it to be misunderstood that I did," James said. "And that's why I have come forth to talk about it because I don't want anybody to think I did authenticate these documents."

He who knowingly enables and facilitates the fraud is as guilty as he who originated it.

It doesn't matter whether CBS News had other experts who supported the documents' authenticity.  If there were such experts, they were wrong.  CBS News and Dan Rather proceeded deliberately in the face of explicit warnings from Ms. James and Ms. Will.  They had either actual knowledge of the forgeries, or they proceeded with such reckless disregard that constructive knowledge must be imputed to them.

The only thing that could cause me to reconsider these opinions would be a revelation that tonight's ABC News article was as totally fraudulent as the original "60 Minutes II" broadcast.  I defy anyone to make that suggestion with a straight face.


Dan Rather and everyone else at CBS News who had direct managerial authority over, and supervisory involvement in, the production of last Wednesday night's "60 Minutes II" broadcast about the Killian memos must be fired.  Not retired.  Not pensioned off.  Not allowed to resign.  Not given 30 days' or even three days' notice.

They must be fired — instantly, effective immediately, "for cause" and "with prejudice," forfeiting all unvested future benefits from their employment.  They should be escorted by security personnel from the building, with their belongings sent to them in due course after they've been screened for relevant evidence.  All of their computers, files, and other items of potential evidentiary value must be segregated immediately and secured under lock and key with a tight and explicit chain of custody.  There must be no spoliation of evidence permitted.

This must be done publicly — before the close of business on Wednesday, September 15, 2004, and preferably before noon.

If it's not, then the executives who failed to do the firings should be fired before the close of business on Thursday, September 16, 2004.


CBS, through its affiliates' licenses to use broadcast frequencies that belong to the public, is a repository of the public trust.  Its employees, acting within the course and scope of their actual and apparent authority, have deliberately and knowingly abused that trust for the most venal of motives — motives that are antithetical to the function of the press in a free and democratic society.

If Dan Rather is still an employee of CBS News by next Monday, then the appropriate committees of the United States House of Representatives and the United States Senate should convene public joint investigative hearings immediately, with Dan Rather as their second subpoenaed witness. 

The first witness must be an appropriate custodian of records from CBS News, who must be directed to bring every shred of paper, every email, every piece of videotape, every computer file, every outtake, every script, every memorandum of staff meetings — and every bit of advice rendered by inside or outside legal counsel to CBS News prior to the broadcast.  There is no attorney-client privilege to shield advice rendered to assist a client in the perpetration of a crime or a fraudSee, e.g., Swidler & Berlin v. United States, 524 U.S. 399 (1998); United States v. Zolin, 491 U.S. 554 (1989).

If CBS News fires everyone involved, then in my opinion, by bipartisan agreement of responsible Congressional leaders, the Congressional investigation should be postponed until after the November 2nd election, but concluded before the presidential inauguration in January.

In either event, Mr. Rather should immediately consult competent counsel to consider whether to assert his privilege under the Fifth Amendment of the United States Constitution to refuse to give testimony that might incriminate him in the commission of a crime.


Hat-tip InstaPundit for the link to the ABC News story.  The opinions expressed here, of course, are emphatically, confidently, and unreservedly my own. 

Contact CBS News via this lnk.

Your local CBS affiliate can be found via this link.

CBS sponsors and their contact info is listed here

Here are links to well considered tips on how to urge Congress to initiate the hearings.

Here is a link to a downloadable Excel file with CBS affiliates that includes station names, postal addresses, phone and fax numbers, rank in market share, and web pages.  Here, from the same website, is a service that will forward, at a fairly nominal expense, a variable-sized batch of faxes demanding Rather's resignation to CBS executives, affiliates, and/or major shareholders.  Here's an email address for the outside/nonmanagement directors of CBS' corporate parent, Viacom.  And here is a collection of some additional contacts.  [Added these links by update on Wed Sep 15 @ 2:33am and @ 6:05pm — Beldar]


A postscripted request to commenters:  I'm dead tired, having just returned from a public hearing that ran well into the night in a small and distant Texas town.  Yes, I've read about Killian's secretary's statements, and I'll post about that tomorrow, and you're welcome to comment on that then.  Nothing she said or could have said matters to this post.  Nothing — not even Lt. George W. Bush using TANG aircraft to traffic in cocaine sales to minors — could justify what CBS News has done.

Posted by Beldar at 12:11 AM in Mainstream Media, Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Dan Rather was complicit in defrauding the American public in an attempt to defeat a sitting President. Rather must be fired now. Congress should subpoena CBS News' lawyers and all documentation of their advice. and sent a trackback ping are listed here:

» Beldar kicks butt from Politicalities

Tracked on Sep 15, 2004 12:27:09 AM

» Beldar channels Zell Miller. But politely from Rathergate.com

Tracked on Sep 15, 2004 1:55:24 AM

» Beldar: Dan Rather was complicit in defrauding the American public in an attempt to defeat a sitting President from In Bill's World

Tracked on Sep 15, 2004 2:42:14 AM

» CBS Against the World - Memos, memos, memos from bLogicus

Tracked on Sep 15, 2004 3:00:19 AM

» RatherGate from LeatherPenguin

Tracked on Sep 15, 2004 7:55:25 AM

» Evidence Of Communism? from PubliusTX Weblog

Tracked on Sep 15, 2004 8:02:02 AM

» Beldar cuts to the chase from Lead and Gold

Tracked on Sep 15, 2004 8:41:08 AM

» Welcome to the Pajamasphere - watch your fact-checking! from Ripples

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» Dan Rather Should Be Fired from Patterico's Pontifications

Tracked on Sep 15, 2004 9:14:20 AM

» RatherGate from LeatherPenguin

Tracked on Sep 15, 2004 9:15:26 AM

» Strong words: Rather must be fired now from cut on the bias

Tracked on Sep 15, 2004 9:37:20 AM

» Rather and CBS: Melting Down from Reductio Ad Absurdum v3

Tracked on Sep 15, 2004 9:40:13 AM

» And whoever the culprit... from dustbury.com

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» Wednesday's RAthERGATE Roundup from Dump Dick Durbin

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» Clearly B. S. from Generation Why?

Tracked on Sep 15, 2004 1:33:34 PM

» CBS edges out Atrios for H-Bomb's Kerry Hack-of-the-week Award from The H-Bomb

Tracked on Sep 15, 2004 1:41:08 PM

» What would Rather do? from QandO

Tracked on Sep 15, 2004 7:54:34 PM

» RatherGate: Subjective v. Objective Defense? from A Stitch in Haste

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» The Longer CBS Memo from Right on the Left Beach

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» I remain flabbergasted from Dan and Angi Have Something to Say

Tracked on Sep 15, 2004 9:58:08 PM

» Rathergate: Beldar's About-Face from Random Observations

Tracked on Sep 16, 2004 9:25:54 AM

» Re: How the blogs can beat Rathergate from Liberty's Century

Tracked on Sep 18, 2004 10:18:02 PM

» What would Rather do? from QandO

Tracked on Nov 9, 2004 5:46:31 AM

» The Longer CBS Memo from Right on the Left Beach

Tracked on Jan 26, 2005 3:42:35 PM


(1) krakatoa made the following comment | Sep 15, 2004 12:29:37 AM | Permalink

strong stuff Beldar.

And very appropop.

I've been wondering what sorts of penalties may be involved in this sort of thing. So far, I haven't seen anything that deals with the element of using Fraud to influence an election.

(2) Voice of Reason made the following comment | Sep 15, 2004 12:31:40 AM | Permalink

I have no idea why my Trackback made a double appearance. Sorry.

Well said, all of it.

Any speculation as to motive? They had to know they'd get caught. I can't believe they'd be so stupid as to think they'd get away with this. What on Earth did they have to gain by destroying themselves in this manner?

(3) Beldar made the following comment | Sep 15, 2004 12:38:24 AM | Permalink

Voice, I have a guess re the trackbacks. MT's and TypePad's trackback pings — and probably other blogging packages' as well — oftentimes don't get the signal that the first ping has been received (I'm told it's an "internet latency problem"), and therefore don't clear that field. When you resave the post (e.g., with an update), it resends the ping. I always check the target to see if the ping's been received and registered, and if so, clear that field before resaving. But it's no big deal, the duplicates are easy to delete, and I pay attention to who's pinging me.

(4) PBRMan made the following comment | Sep 15, 2004 1:10:46 AM | Permalink

I'm thinking that the corporate entity, Rather, the producer and others have aided and abetted a forgery intended to influence a presidential election, or have been accessories to that forgery. I'm also thinking that they can be charged with those crimes in any jurisdiction into which they have published the forgeries. Am I missing something?

(5) Jenjis Kahn made the following comment | Sep 15, 2004 1:10:49 AM | Permalink

Whew! I thought I was tough!

(6) The Drill SGT made the following comment | Sep 15, 2004 1:16:49 AM | Permalink

Texas Penal Code

person commits an offense if he:
(1) knowingly makes a false entry in, or false
alteration of, a governmental record;
(2) 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;
(3) intentionally destroys, conceals, removes, or
otherwise impairs the verity, legibility, or availability of a
governmental record;
(4) possesses, sells, or offers to sell a governmental
record or a blank governmental record form with intent that it be
used unlawfully;
(5) makes, presents, or uses a governmental record
with knowledge of its falsity; or

(7) Beldar made the following comment | Sep 15, 2004 1:30:47 AM | Permalink

I'm not alleging that Rather's an unindicted criminal, but neither am I kidding about Rather needing separate counsel to advise him about taking the Fifth. Dan, if you're reading this — sue me! I'll waive service, we can go straight to the judge to talk about expedited discovery and a temporary restraining order ("TRO") to quarantine the evidence in the meantime. You can have my computer if I can have yours, or we'll just give 'em both to the US Marshals.

(8) Arvin made the following comment | Sep 15, 2004 1:39:30 AM | Permalink


(9) Fresh Air made the following comment | Sep 15, 2004 1:46:17 AM | Permalink

Great post, Beldar!

Effing around with forged memos on national television while an elections weighs in the balance is totally unacceptable. We do not have a free press so it abuse the public's trust.

I only wish Bush would sue the bastards for libel. I'd say he would be almost a shoe-in. Reckless disregard is plainly met here.

(10) Beldar made the following comment | Sep 15, 2004 1:50:28 AM | Permalink

Re-reading my post, I've spotted an ambiguity that I've edited to fix. Originally I said, "were co-conspirators from the start," without specifying what the "start" was. I've changed it to read, "had become co-conspirators by the time of their broadcast." I still have no reason to think, and do not allege, that Rather or CBS participated in the creation of the forged documents. My precise allegation (as I think the context made clear, but as should now be in no doubt) is that they knew of, or should have known and proceeded with reckless disregard for, the inauthenticity of the Killian memos. It's to prosecutorial authorities to decide whether any criminal laws may have been violated, and I will leave that to them. I'm alleging, though, that Rather became complicit in a civil conspiracy to defame the reputation of George W. Bush.

And I repeat: Mr. Rather, if you think I've myself jumped the New York Times v. Sullivan bar and defamed you with resulting damage to what shreds of reputation you have left, I'm not an anonymous blogger; I'm hardly a deep pocket, but you can find me if you want to sue me, and I'll meet you at 515 Rusk at the U.S. District Court for the Southern District of Texas, Houston Division, at a time of your choosing tomorrow.

(11) Major Domo made the following comment | Sep 15, 2004 1:51:50 AM | Permalink

Suppose we had a Democrat-controlled Congress. Would you want it to investigate the "lies" the Democrats claimed that Rush Limbaugh was telling?

The essence of having a free press is that it's not up to the government to make a determination of when the critics of the party in power are telling the truth.

I share your outrage, but am 100% opposed to the suggestion of getting any branch of the government involved in trying to rectify the problem. I truly believe that Rather is crashing and burning most impressively under the weight of his own hubris. The truth, not government censorship, is the weapon we can use effectively to help him reach his destiny.

(12) Beldar made the following comment | Sep 15, 2004 1:55:58 AM | Permalink

Major, if this were purely print or internet media, I'd agree. The WaPo and NRO publish without the use of public airwaves. CBS doesn't; they have an oligopoly position granted by virtue of their affiliates' licenses, and thus responsibilities that other forms of media did not voluntarily assume and may not be held accountable for in Congress.

Congressional hearings may not determine "the objective truth" in the same way a civil lawsuit would (to a preponderance of the evidence or a clear and convincing evidence standard) or that a criminal trial would (to a beyond reasonable doubt standard). But whether that ever happens in a courtroom — and I'm inclined to doubt that it ever will be, unless Mr. Rather takes up my offer that he sue me — there is a compelling public interest at issue here that Congress ought not ignore, even if (as I think would be unlikely) it broke down into a partisan spat with a dissenting report and no legislative action.

I repeat, even if Dubya ducked his guard service, disobeyed an order, or whatever else CBS News alleges, that cannot justify CBS News using forged documents. There is a compelling public interest in investigating a beneficiary of the public airwaves who has done that, and in deterring others from doing so in the future — without regard to what young Lt. Bush did or didn't do, and without regard to whether he wins or loses on Nov. 2. TV networks that exist by grace of Congressional permission bestowed through Executive (FCC) action cannot be immune from public scrutiny before the people's duly elected representatives.

(13) Mike H. made the following comment | Sep 15, 2004 2:07:16 AM | Permalink

I'm not a lawyer but isn't impersonating a federal
officer a crime? I know that donning a uniform in
order to deceive is a federal crime, what about a
written impersonation of an officer in order to
commit a fraud? The documents were written in someone
elses name for the purpose of deception, it should be
a federal offense.

(14) Voice of Reason made the following comment | Sep 15, 2004 2:28:37 AM | Permalink

Beldar, I'm not quite understanding the goad for your challenge to Rather. How could he possibly have a cause of action against you? He's a public figure, and your statements against him, even if defamatory (which they are) and false (which I doubt), are what you reasonably believe to be true and are made with neither malice nor reckless disregard for the truth. Even if Rather's considerable ego urges him to come after you, his lawyers are surely wiser than he.

(15) Douglas Haig made the following comment | Sep 15, 2004 2:51:20 AM | Permalink

Ach, I think you're nuts. Without doubt ol' Dan has zero ethics and has proferred garbage on the air. And so? CBS isn't a national institution, it's a private company in a free market. If they're spouting bulls**t, do the same thing you do when a Hollywood movie trashes conservative ethical values -- turn the channel. Vote with your feet and your pocketbook. Turn off CBS. Sell your Viacom stock. Kill your television.

This appeal-to-the-king thinking is exactly what got us an arrogant father-knows-best CBS in the first place. People are never free as long they look to any Big Daddy to solve their problems, whether Daddy is the government solving the problem of how to afford decent health care, or Daddy is an affable host on a big TV network solving the problem of how to sift fact from nonsense and rumor, or, in this case, Daddy is government taking the affable host to the woodshed when he -- shock, shock! -- turns out to have his own political agenda and a tendency to cut ethical corners when it suits.

I think your argument about the airwaves being a precious proletariat-owned communal resource is silly. Clearly communication bandwidth is no longer a rare resource accessible only to big firms, since if it were the CBS fraud would still be going on. We are living in an age where any citizen with $50/month can reach millions every day through a blog. It's the most free market in communication there's ever been. No one with an extra $29.99 a month for DSL and the brains God gave a goose has to get The Truth from CBS any more. The idea that what the communication industry most needs now is a hefty dose of government oversight and regulation -- all for the "good of the people", natch -- is patronizing Stalinist folly of the kind they already practise in China with respect to the Net, and you would live to bitterly regret it when the tables got turned. As they would be: it's only a matter of time before a major blogger has a major ethical lapse -- it's only human nature -- and then where will you be, having allowed the principle that government should save us poor dumbhead public from being exposed to falsehood?

Blech. Remember Reagan, for Christ's sake: government is (almost) never the solution -- government is the problem. Punish Dan Rather through the market and the court of public opinion. Don't go wishing on the Monkey's Paw of government. Sure, you'll get your first three wishes. But what then? Think it through.

(16) Beldar made the following comment | Sep 15, 2004 2:55:50 AM | Permalink

Voice, I don't think he will either. But until this week, I didn't think he'd run a "60 Minutes" story based on documents that he knew or should have known were forged, or that he'd defend that action against all reason for a solid week. I'm assuming that CBS News' inhouse and probably also outside counsel — who are indeed very good — must have been involved before they broadcast to begin with. I'd be stunned if they weren't, and as I wrote above, I think whatever they said is discoverable notwithstanding attorney-client privilege that would normally shield that advice. My bet is that they raised some red flags, but didn't wave them furiously enough, and Rather just bulled past their advice.

But I'm absolutely serious in my invitation to Rather. And about the TRO to prevent spoliation. If I thought anyone other than Dubya had a private cause of action, I'd cheer them on, because if ever there was a scandal that calls for methodical deconstruction under the microscope of aggressive civil litigation, this is it. The national interest involved, IMHO, is bigger than in the famous Westmoreland v. CBS trial some years ago, but this would be vastly more manageable in terms of witnesses, documents, preparation time, etc.

Rather's behavior, and apparent ability to get away with it, is so irrational that I would not hazard any guess as to what they'll do next. If they have a lick of sense, they'll fire him tomorrow — the ABC News story is that big IMHO, because it's so much more devastating than the prior revelations about Marcel Matley being guarded in his opinions, etc.

I'm guessing Floyd Abrams' calendar has been cleared for tomorrow and that he'll be spending his day at Black Rock, if he hasn't already spent the past week there. He's represented CBS in the past, and he's awfully good. If they're relying on anyone of less experience and stature and judgment for this, they're still high on their own fumes and in serious denial.

Make no mistake, firing Rather would be the metaphorical equivalent of a wolf caught in a trap chewing off its own leg at the hip to survive; and it might bleed to death anyway. We're talking the public face of CBS News and, to a considerable extent, the entire network. I can almost imagine them hunkering down, trying to ponder their options and do damage control, up until the ABC News story broke. But, to extend my metaphor, the wolf's now not only in the trap, he can hear the hunter crashing through the underbrush and will be looking down the wrong end of a gun barrel in a matter of hours now — not days. Time to chew off that leg or face extinction — or that would be my advice, anyway, and I think that of most seasoned lawyers.

The only chance that CBS has to survive this in anything remotely approximating its current or historic form — albeit necessarily a much wounded, amputated-limb version of its prior self — is to clean out its own house.

(17) Beldar made the following comment | Sep 15, 2004 3:12:00 AM | Permalink

Mr. Haig, thanks for the thoughtful comment. I'd agree were this not already a regulated medium that owes its historic and current existence to what is still an incredibly scarce and incredibly valuable public license. Yes, other forms of media are making it less relatively valuable than it was in, say, 1968, when Rather's predecessor as anchor could sway the entire country's public opinion after the Tet Offensive. Maybe technology will someday make broadcast networks indistinguishable from other media that are essentially immune from content-based regulation. But that day isn't today, and CBS and its affiliates — and Congress and the FCC — well know that.

I'd never suggest content-based regulation for something as common as overwhelming political bias. But if complicity in a fraud, with actual or constructive knowledge thereof, to affect a national election through use of forged documents doesn't justify at least Congressional inquiry, then we might as well close down the FCC tomorrow. This isn't about Janet Jackson's boob.

(18) See-Dubya made the following comment | Sep 15, 2004 3:19:09 AM | Permalink


You might take this up tomorrow as you discuss the secretary's statement, but:

The secretary, Ms. Knox, hinted that there may have at one time existed typed documents that contained much of the same information as the forgeries. I suspect we'll never know. There are two potential frauds here--what the papers allege, and what the papers are alleged by CBS to be. So, for the sake of argument, what if the charges the papers allege are true? Where is the injury if these fakes merely reconstruct the truth?

I ask this because I have speculated--and so had Ace of Spades (ace.mu.nu) that the "fallback position" of CBS would be that these documents are reconstructions or dramatizations of real records that were lost.

It wouldn't survive an evidentiary challenge in a courtroom, certainly, but so what? You yourself have made the point in urging the Swiftvets to "recreate" Kerry's battles that the news media are under no such constraints.

If it's true, it's not slander. So where is the fraud? I know it's a fuzzy area, but surely not all lies are fraud. I can walk around crying "I have a copy of the Bible signed by Jesus Christ himself", and that's not fraud. How is what CBS has done different?

(19) addison made the following comment | Sep 15, 2004 3:41:47 AM | Permalink

The difference is that CBS represented what they had--and went to great lengths over two following broadcasts--that the papers in their position were the genuine article, not "reconstructions" or "representative documents".

There position differed night and day from the escape you're attempting to give them.

(20) Beldar made the following comment | Sep 15, 2004 3:43:45 AM | Permalink

See-Dubya, the use of the forged documents is the fraud.

If they'd run a story saying, "We believe that there once were documents that said ...," then I would have thought that shoddy journalism, but nothing remotely so culpable as what they've done. But instead, CBS said, in so many words, "This is the direct written order that George W. Bush violated." Not "there may have been" or "we're told there was such a written order."

With due respect, I'm either not following your Bible hypothetical, or it's inapt. Saying you have a Bible signed by Jesus doesn't damage anyone's reputation but yours.

The "60 Minutes" broadcast was completely built around the assertion that these specific documents were genuine, and that they were the operative documents which prove that Bush violated a direct order. If in fact Bush violated some different direct order, and conclusive proof of that came out independently, then perhaps he'd have zero damages because his reputation would have been destroyed anyway. But that wouldn't make the use of the forged documents okay. The ends can't justify use of knowingly fraudulent means.

There's a defensive doctrine in defamation law called "substantial truth." In fact, it was the doctrine that was the basis for the trial court summary judgment in CBS' favor that my long-ago predecessor as their counsel (the now-just-retired Chief Justice of the Texas Supreme Court, Tom Phillips) had obtained, and that (when he was appointed to the state district court bench) I successfully defended for CBS News on appeal to the Fifth Circuit. In that case, CBS News had run a broadcast alleging that an individual was defrauding the government through a phony student loan program. He sued CBS for defamation, but while his defamation case was pending, he was indeed indicted for defrauding the government, and ultimately was convicted. The conviction "collaterally estopped" him from continuing to argue in his defamation case that he was innocent of any crime; that issue was foreclosed from further pointless litigation, since the government had already proved his crimes beyond a reasonable doubt. He argued, however, that what CBS News had alleged wasn't precisely the same as what he'd been convicted for. The federal district court said, in essence, CBS News said you were a crook, and a crook you've been proved to be; everything they said about you was the "substantial truth" and we're not going to pick nits over things they might have said about you but didn't.

Here, by contrast, CBS News didn't just say "George W. Bush disobeyed orders." They said, "These are the genuine documents which prove that George W. Bush disobeyed orders." Even if George W. Bush did disobey orders, the statement that "these are the genuine documents which prove it" wouldn't be true, or substantially true — the documents are forged! The level of specificity is entirely different with the Killian forgeries; it's the converse of the case I won for CBS News in the Fifth Circuit.

But I'd be delighted to go back to the Fifth Circuit and argue the point with them again. If their argument is, "We were liars and cheats, but that's okay because we were lying and cheating to hurt someone who deserved hurting," I don't think the court is going to be very sympathetic.

Finally: Let's remind each other that this hypothetical is all premised on the notion that the spin CBS is putting on the secretary's statements will turn out to be the absolute gospel. Forgive me if I'm a little wary of that premise, or of the NYT as CBS' factchecker on it. But that's a subject of another post, which I'll only undertake after a few hours' sleep and a bunch more browsing.

(21) James Nightshade made the following comment | Sep 15, 2004 4:35:02 AM | Permalink

I'm worried about this suggestion. The forger is certainly deserving of prosecution. Rather probably is as well, considering his nearly-inexplicable behavior in this matter.

But congressional investigation of a political news story makes me uneasy, even in this case. The government should be very very leery of getting involved in news reporting. And even if it is fully justified, it will make Dan Rather into a martyr in the eyes of many people.

In my opinion, it's better to let the other news organizations handle this. They may be timid, self-promoting, and biased to varying degrees, but many of them do have a sense of decency and justice. If Rather continues to assert the authenticity of the memos (and it actually seems he will!) then he'll become a laughingstock to more and more people. Viacom will simply have to get rid of him eventually, and there's an end to it.

Yes, the forger and his/her enablers probably get away more or less scot free in that scenario. So be it.

(22) See-Dubya made the following comment | Sep 15, 2004 4:44:08 AM | Permalink

Thanks, Addison and Beldar. Addison, let me stress I'm not trying to "give them an escape" so much as anticipating what I think is a very likely line of defense. The NYT headline (http://www.nytimes.com/2004/09/15/politics/campaign/15guard.html) says the memos are "fake but accurate".

Beldar, I guess I am having trouble discerning whether you are accusing CBS of fraud, defamation, or both--or is the fraud of pushing the memos an element of the larger defamation?

Let me try this another way: So what? In this hypothetical no innocent party is wronged. Assuming the secretary's statement holds true, then who got hurt?

Certainly CBS's reputation was damaged by the methods they used. But then we're back to my hypothetical of the Bible signed by Jesus: that only hurts me. And in this (fake bizarro) fact pattern Bush gets hurt, but since he was actually guilty of the things the forged memos allege all along,it's not like he was ever falsely accused by CBS and he suffers no injury to his reputation that wasn't deserved.

So why would a court worry about how CBS went about making the case against Bush, if he turns out ultimately to be guilty of the same things CBS accused him of? CBS may have acted recklessly, but they might even argue that they had to do so or the truth would never surface.

Again, I don't expect corroboration for the secretary's story to emerge. I just don't think Bush is guilty of what the forgeries allege, so I don't think this confirmation exists. All the same, I do expect to hear this sort of defense for CBS asserted, especially since "everybody knows" Bush had strings pulled for him.

Bush's culpability in these matters is already taken as gospel by swarms of lefty partisans. Exhibit A: Nicholas Kristof today--"we shouldn't be distracted by our doubts about the CBS documents. There's no doubt that Mr. Bush benefited from favoritism. The speaker of the Texas House has acknowledged making the call to get Mr. Bush into the National Guard."

(23) M. Simon made the following comment | Sep 15, 2004 4:44:58 AM | Permalink

(24) rob made the following comment | Sep 15, 2004 5:24:10 AM | Permalink

I agree that immediate firings and hearings are in order.

However, it seems to me that there are other steps that need to be taken:

1. The federal government, state governments and all corporations who believe CBS committed fraud should immediately de-credential CBS and all of its affiliates' reporters: exclude them from all press rooms, briefings, and interviews. Do not send them anything or take questions from them. Essentially, send CBS to Coventry.

2. The FCC should immediately initiate hearings and, pending the outcome, suspend the licenses of all CBS owned stations. Take them off the air.

This might be too drastic, but it seems drastic is what's needed.

(25) Davod made the following comment | Sep 15, 2004 5:24:34 AM | Permalink

Hasn't anyone heard of expert witness shopping. It is clear that this what CBS id in the worst possible way. This may be alright for lawyers trying to win a case but not for a company purporting to broadcast news. You need to rememeber that this is not new to CBS. Do you think that all the experts agreed when they broadcast other contraversial stories involving expert testimony. That the public airwaves is used to broadcast this should be reason enough to seek congressional review.

(26) M. Simon made the following comment | Sep 15, 2004 5:41:52 AM | Permalink

I blame Congress:

Congress did it

What Rather did was an attempt to get around campaign finance laws.

i.e. screw with free speech and you screw up free speech.

And I hope this has been a lesson to you all.

(27) Doug made the following comment | Sep 15, 2004 5:47:39 AM | Permalink

This whole story is just about to be washed away anyway. Perhaps the best view would be to drop it. The only hope is for CBS to act honorably and we have already seen they have no honor.

(28) Mark made the following comment | Sep 15, 2004 6:56:46 AM | Permalink

Hey all you lawyer-type folks...

Wouldn't the ex-Mrs.Killian, or especially her son (or the Killian estate or whatever) have some sort of basis for a lawsuit? They have stated that those were NOT the thoughts of Killian and were definitely not written by him.

I'd hate to think someone could use my name after my death and put words into my post-motem mouth... Then justify it because they "believed" what they said fit their facts.

Just wondering. Great article Beldar!

(29) max made the following comment | Sep 15, 2004 7:11:33 AM | Permalink

Two comments:

1. Knowingly particpating in a fraud is an entirely different (and far more serious) thing than being duped. That is what Congressional hearings are needed for - unfortunately. If CBS had been duped, then I think self-policing by other members of the media would be enough, but it is no longer clear that that is the case.

2. The defense that "the documents were forged, but they're still true" reminds me of Hitler's use of the Reichstag fire - it doesn't matter who started the fire, what I (Hitler) am saying about the people who I (wrongly and dishonestly) say started the fire is true - therefore I am entitled to punish them even though they didn't start the fire.

(30) Mark made the following comment | Sep 15, 2004 7:21:30 AM | Permalink

That was, of course, supposed to be "post mortem" mouth ;)

(31) recon made the following comment | Sep 15, 2004 7:59:43 AM | Permalink

If I'm not mistaken, McAuliffe and the DNC have based their latest Moore-ian slam against the President on this story and these documents.

Given the lead time to prepare slick coordinated media pieces, it would seem that the slime trail (therefore any legal action) may initiate from or at least conjoin with the DNC and McAuliffe personally.

(32) Beldar made the following comment | Sep 15, 2004 8:08:36 AM | Permalink

See-Dubya, I'll try once again, but with more pith:

Even if CBS News could truthfully have said Bush did something else bad, that does not excuse CBS News from knowingly using forged documents in an attempt to prove, falsely, that Bush did this particular bad thing.

I cannot make it any plainer.

(33) teethgrinder made the following comment | Sep 15, 2004 8:19:45 AM | Permalink


Just a note - CBS, back during the Pentagon Papers / Selling the Pentagon days argued that that they, as the press, had the same rights as a newspaper and that the FCC's interest did not include the news gathering aspect.

I happened across it this morning. I did not pursue to see how it concluded, but you may wish to follow-up.


(34) TC-LeatherPenguin made the following comment | Sep 15, 2004 8:29:44 AM | Permalink

Bravo, Beldar! Like some of the posts here, I am uncomfortable about getting the Feds involved in this, but the facts are the facts: ABC, NBC and CBS owe their very existence to a compact with the public that allows them free access to the widest communications spectrum available, ratings be damned. They have an obligation to play it by the book. Sure, they can mold a story to offer a particular view, but they cannot knowingly put blatantly false information before the public and call it the truth. The FCC is constantly on a guy like Howard Stern's back for violating vague, undefined "decency" standards, handing down fines and always holding the threat of yanking licenses.

He never committed a violation of federal law.

(35) DJ made the following comment | Sep 15, 2004 9:20:32 AM | Permalink

If The Drill SGT is correct (and based on my search, I think he is) that Texas Penal Code 37.10 provides:

§ 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:
(2) 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;

Then I think a Texas prosecutor should get involved here, not only to find out who made the documents but also regarding CBS News' presentation and use of the documents. The issue would be whether CBS News had "knowledge of its falsity". Of relevance on this issue would be the testimony from the CBS document examiners, Emily Will and Linda James, who are quoted By ABC News as saying that before the 60 Minutes II program they reviewed the documents at CBS News' request but refused to authenticate them.

Would the DA in the county where the TANG is headquartered be the appropriate prosecutor? If so, I believe that the TANG is headquartered at Camp Mabry in Austin, Texas, so the DA would be Travis County DA Ronnie Earle. I'm not sure how interested Mr. Earle would be in investigating this.

Finally, Section 37.10 has this exception:

(f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government's purpose for requiring the governmental record.

Beldar, any idea how this exception would factor in?

(36) Mimi made the following comment | Sep 15, 2004 9:21:19 AM | Permalink

So, if I understand this correctly, if CBS had come out with these documents, said they were typed up copies of originals that were originally handwritten, and, presuming the handwritten originals were actually available somewhere, then there would be no cause for concern, right?

Something along these lines has been floated by CBS for a few days now.

But since CBS wanted to present a stronger argument, they overplayed their hand, presented these documents as genuine, and even though they are not originals, CBS maintains they are copies of originals produced at the time. Hence the fraud. And the hubris. Right?

(37) Mikey made the following comment | Sep 15, 2004 9:38:56 AM | Permalink

As per Yahoo this a.m., Rather and CBS continue to flip everbody the bird and promise a new defense of the documents against "people who, for their own partisan, political agendas can't deny the core truth of this story." Amazing!

(38) Joshua Chamberlain made the following comment | Sep 15, 2004 9:49:55 AM | Permalink

Beldar, not to be a nag, but the Supreme COurt case is Swidler & Berlin, not Swindler (kinda like Dewey, Cheathem & Howe or Craven, Swine & Less).

(39) Vlad made the following comment | Sep 15, 2004 9:57:03 AM | Permalink


I'd look to Maj. General Hodge's statement of CBS misrepresenting the documents as 'handwritten' and Matley's latest statement claiming he couldn't authenticate 'copies' for the common denominator.

(40) jack white made the following comment | Sep 15, 2004 9:58:05 AM | Permalink

Beldar, I agree with you in part, and disagree with you in part. Let me summarize where we agree.

1. The documents are forgeries.
2. Rather either knowingly or recklessly used forgeries. You may be right and it was intentional.
3. Congress does have the right to regulate broadcast stations and has oversight of the FCC.

That said, I don't think this should be the subject of congressional hearings. Why?

1. Dan Rather will present himself as a victim.
2. CBS will not divulge the source if that occurs, however, it appears likely they will burn their source in the next few days due to economic and peer pressures.
3. If CBS reveals its source, it is likely to have been from within the Kerry campaign, and the party hacks deserve to pay a heavy price for what they have done.
4. Just because Congress has oversight, they shouldn't always exercise it.
5. Economic and peer pressure is the best route to expose Rather, expose the Kerry campaign, and possibly expose decades of frauds perpetrated on the public. Again, congressional intervention would result in the burning wagons being doused and circled again.

I agree with the gist of what you posted, and with your outrage, but not your proposed remedy.

(41) Wacko made the following comment | Sep 15, 2004 10:02:22 AM | Permalink

Seems to me it's someting of a detour to couch this thing in terms of fraud, which as I recall requires detrimental reliance by, and injury to, some person or entity. Forgery, on the other hand, seems to be clearly made out, and CBS has published and re-published these forgeries at a time when it knew or should have known that that is precisely what they were. At the very least, by the time they went on the air they were parties to a conspiracy to publish forgeries. And my hunch is that they are subject to prosecution in any jurisdiction where the publication occurred.

(42) Patrick R. Sullivan made the following comment | Sep 15, 2004 10:06:35 AM | Permalink

I think the appropriate federal agency would be the FEC. Seems Rather tried to give an illegal contribution to the Kerry campaign. Though, since it backfired on them, maybe it should be Kerry complaining to the FEC, not Bush.

However, since we've found Killian's secretary, we should be able to find out if their office had an IBM Composer.

(43) Joshua Chamberlain made the following comment | Sep 15, 2004 10:06:39 AM | Permalink

Great post. I think we are past the point of having any patience with the left-wing apologists who are still trying to argue the documents could be real.

(44) mcg made the following comment | Sep 15, 2004 10:18:46 AM | Permalink

Killian's secretary's statements are self-contradicting, by the way. At one point, she admits to having no first-hand knowledge of Lt. Bush's service---just general knowledge of special treatment given the "favorite sons." Then in another sentence she says she knows that the content of the memos reflected Lt. Col. Killian's feelings. Umm, no.

So her anti-Bush sentiment is not difficult to disregard. What is of course more important is that she fails to back up CBS's story.

Incidentally, I am all for Congressional hearings on this issue, but only AFTER the election. In all likelihood, ABC and NBC will rush to CBS's defense on this, if only because they fear that the government will institute new regulations on OTA news reporting. They will likely, and rightly, perceive such regulations would be restrictive and prevent them from competing as well against the cable networks which currently are not under government regulation.

We want these other networks to stay on the offensive against CBS as much as possible right now.

(45) David Foster made the following comment | Sep 15, 2004 10:21:14 AM | Permalink

In order to overcome attorney-client privilege and subpoena advice from CBS lawyers...wouldn't it *first* have to be proved that a fraud had indeed occurred? If not, then the mere allegation of a fraud would be sufficient to overcome attorney-client privilege.

(46) The Raving Atheist made the following comment | Sep 15, 2004 10:27:45 AM | Permalink

Why the leniency, Beldar? Isn't the Blogosphere also entitled to Cartman's revenge -- the right to lick Dan Rather's tears after he's tricked into eating chili made out of his dead parents while Radiohead calls him "totally not cool"?

(47) David Foster made the following comment | Sep 15, 2004 10:29:11 AM | Permalink

Re Patrick Sullivan's thought that this should be framed in terms of illegal election contributions...isn't this kind of thing happening on a large scale throughout both the print and electronic media? When a media company provides print coverage (which might be worth $100,000/page if sold as advertising) or air time (which might be worth $1,000/minute) to promote the cause of a particular candidate, aren't they in effect making an in-kind contribution? I'm not talking about editorial positions here, but rather about the slant of the entire news coverage as well.

(48) LazyMF made the following comment | Sep 15, 2004 10:29:33 AM | Permalink


Although I am on the other side of the political fence from you and your readers, let me throw you this legal bone:

Spoliation itself is a separate civil cause of action in some US jurisdictions. California comes to mind. However, I don't know the standing requirements to bring a civil spoliation action.

/my $0.02.

(49) LazyMF made the following comment | Sep 15, 2004 10:42:48 AM | Permalink

I want to add this to my comment above. CREATING documents is a form of spoliation in certain circumstances.

With respect to the Texas Penal Code posts, the obvious response is that CBS didn't "create" the documents, but only "used" them with possible knowledge of their falsity. Maybe a prosecutor (or ex-prosecutor) can weigh in here.

(50) The Raving Atheist made the following comment | Sep 15, 2004 11:10:39 AM | Permalink

CBS may have one more out: Glennon, Katz Win Nobel Prize in Forensic Typography . . .

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