[Parts 1 and 2 combined here]
The assumption of most covering this story is that CBS made a mistake due to bad judgment, negligence or perhaps even recklessness, caused by its partisan fury.
But, under that jurisprudence, any crime is just “bad judgment.”
I’m not buying it. I smell criminal intent. And unfortunately for CBS, they seem to have splattered their DNA all over the crime scene. It’s all gonna be about the bogus claim of the “personal file” provenance.
What CBS Wanted
CBS wanted a story about the Fortunate Son – the Bush military records being sanitized, and favors being done by bigshots. (As if we needed to be convinced, again.) Mapes is said to have worked the story for 5 years; she wanted Bush’s head. Every investigative journalist fiber at 60 Minutes II was into this.
What CBS Broadcast
So why did the original September 8th 60 Minutes broadcast include the curious claim by CBS that the file memos were from a “personal file?” The exact CBS statement was, “But 60 Minutes has obtained a number of documents we are told were taken from Col. Killian's personal file.” http://www.cbsnews.com/stories/2004/09/08/60II/main641984.shtml
This “personal file” bit takes away some of the thrust of the story that it wanted so badly. Rather and Mapes wanted the most blistering story possible, about privileged malfeasance by republican country club phucks. Thus, breaking a story about 60 Minutes having gotten hold of documents from a sanitized military file would have been more to their tastes, and in line with their journalistic and political objectives.
So why did CBS use the “personal file” claim?
CBS Legal Gets Involved
CBS Legal was involved in shaping the story, pre-broadcast:
“Asked about a report in The Los Angeles Times yesterday that network officials were questioning the documents' authenticity at a meeting several hours before the start of the "60 Minutes" broadcast, Mr. Howard said: "We were sitting there with the lawyers, asking ourselves a million questions….’” http://www.nytimes.com/2004/09/19/politics/campaign/19guard.html
It is no leap to surmise that CBS Legal inserted the claim into the orignal story, that the files “we are told were taken from Col. Killian's personal file.”Dan Rather certainly didn’t want to dilute his piece with that kind of milquetoast. Nor Mapes.
CBS Legal Discovers a Funky Texas Law
But some diligent lawyer in CBS Legal did what any good media lawyer would do, and took a look at the statutes. Knowing that two experts hired by CBS – Emily Wills and Linda James – had both warned CBS, prior to broadcast, that they thought the memos were forgeries, the good attorney punched up the Texas statute on forgery.
S/he didn’t like what s/he found.
Texas, you see, has a truly bizarre forgery statute. It is Penal Code 32.21 http://www.bakers-legal-pages.com/pc/3221.htm
, and two provisions amounted to a flashing red light for CBS Legal.First, the Texas statute provides that the “transfer” or “publication” of a forged document, is itself forgery. That’s bad news for a television network, not to mention for the CBS guy faxing the hot copies to New York from the Abilene Kinko’s. Even worse for a network wanting to broadcast a story through its Texas stations. And really bad for the segment’s producer, Texas resident Mary Mapes.
It gets worse.
The second feature of the Texas statute is a strict liability “malum, in se” provision. For ordinary forgeries, like faking your birth certificate so you can go drinking with your pal Jenna, the statute says you commit the offense if you forge “with intent to defraud or harm another.” But not so when two or more government documents are involved - the statute kicks up to a felony, and most troubling to the eyes of the CBS lawyer reviewing the statute, intent to harm or defraud is presumed to exist, by the very fact that two government documents are involved. See Penal code 32.21(f).
CBS Legal Pits Its Shants
Holy Black Rock. If CBS publishes two or more forged government documents, it and its involved employees commit a felony. And criminal intent is presumed, sorta like being caught in bed with a 13 year old. Your protestations that “she looked 25” are irrelevant. Trip upriver, and you lose your country club membership.
So the CBS lawyer screams bloody murder. Yeah, maybe the strict liability provision could get struck down as unconstitutional, but who among us wants to stake a felony conviction and jail time in Texas, on a constitutional defense?
CBS Legal “Fixes It”
We can surmise that CBS Legal lays it out for Dan and Mary. We can surmise that Dan, who some say is a bit of a prima donna, starts telling war stories and insists that “He has a deadline” and “He is the managing editor of this division” and “We pay you lots of money to fix these things, so fix it !”
So the CBS lawyers, scared stiff by the Texas forgery statute and worried that two CBS experts have declared the memos to be forgeries, did what lawyers do.
They fixed it.
You see, if there is no government file, there is no strict liability and no felony under the Texas statute. CBS Legal will get to claim all its usual defenses to such things, and they can tell Dan and Texas resident Mary Mapes that they won’t be going upriver back in Texas.
So the 60 Minutes storyline changes a little bit. The provenance of the Killian memos changes, courtesy of CBS Legal, or some would say thin air. The memos are now to be known as, “taken from Col. Killian's personal file.”
The whole affair goes to hell. Worse than worse case.And now, CBS Legal has a problem. They left their fingerprints on the story, and they cannot erase them.
Why is that important? Because it shows the mens rea, or “criminal mind,” that existed at the time of the broadcast. And the Texas statute is triggered, even without the strict liability, malum in se provision.
In other words, they knew she was 13, and they got her a fake ID, just in case... .A little too cute, though. How can you claim that you thought she was 25, but you got her a fake ID?
The same way CBS claims good faith... just an honest hardworking mistake. Except for the part that they invented about the personal file, to sidestep the Texas felony forgery statute.
Perhaps even worse, what if CBS Legal temporarily prevailed over Dan, and said that the story could not be broadcast, unless the reporters could come up with someone to state to CBS that the provenance was not from government files?
Burkett, who now claims he is a victim, not to mention a patsy, obliges.
Were Rose Mary Woods still with us, running the phone tape, it might go: “Bill, I’m afraid we cannot run with the story, and we cannot use your memos. See, they appear to be government documents. So unless you can assure us that these are not from government files, that’s the way it is.”
And Burkett calls back. “My source tells me that these are from personal files, not from government files."
CBS says, “OK. Thanks for the courage, Bill.”
Tamper Fi with Special XRay Glasses
CBS’s post-broadcast behavior appears stupid and ineffective to most. For example, Ernest Miller has posted an excellent post-forgery timeline complete with color commentary on the minute-by-minute journalistic lapses by CBS. http://www.corante.com/importance/archives/015750.php
I don’t buy it. It was intentional and knowing criminal behavior.
If I am correct that CBS Legal inserted the phrase “from personal files,” it is the smoking gun of CBS’s criminal intent, like the guy who provides his 14 year old date a fake ID in case the vice squad were to bust them, and then later insists that he “swears he thought she was 25, sir.”
So let’s put on the Personal File XRay Goggles and review what otherwise seemed like mere unethical post-broadcast spin by CBS. It all starts to make sense, when you see the felony stakes that are really at issue.
Felony Abatement Plan
CBS Legal realized that it needed to frustrate the Man’s attempt to establish a few facts under the Texas forgery statute. Texas law says that “ 'Forge' means: to alter, make, complete, execute, or authenticate any writing so that it purports:
(i) to be the act of another who did not authorize that act;
(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii) to be a copy of an original when no such original existed.
(It also provides that publishing forged documents is also forgery; I've already written about that.)
Remember some of those strange, non-sensical claims being bandied about by CBS’s operatives in the early days of Memogate? Talking heads floated trial balloons on TV and in articles (please, post examples in the comments here, I didn’t memorize them all…). These memos were “someone’s retyping of originals” so that “the source wouldn’t get into trouble.”
Yeah, right. And when you heard their lame-assed words, you thought, “Is that the best they can come up with?”
After you get done laughing, though, your new goggles will reveal that such odd claims are defenses under the forgery statute. E.g., a true copy is not a forgery, etc. And that is why the spinmeisters were tossing them into the mix.
See, already at this early stage, your heart and mind were not the object of CBS’s desire and spin. Instead, CBS was already looking down the tracks, wanting to derail the felony train before it got out of the station. Begin the CBS Felony Abatement Plan
Dan Gets Taken to the CBS Legal Woodshed
In the ensuing 48 hours following the broadcast, questions about memo authenticity arise. We can surmise that CBS Legal remains involved. And I can surmise that CBS Legal gives Dan Rather a lecture delivered at high decibels. "You and Mary are Texans, Dan, you wanna do time in a Texas prison?" Dan comes to realize the stakes of this debacle.
Two days after the broadcast, Rather takes to the airwaves.
RATHER: “The 60 Minutes report was based not solely on the recovered documents, but on a preponderance of evidence…If any definitive evidence to the contrary of our story is found, we will report it. So far there is none.”
When did Dan Rather start parsing criminal evidence codes, and speaking like a prosecutor?
He was still raw from his little pow-wow with CBS Legal, and his language shows it. Dan doesn’t like the idea of felony forgery. He wants to derail the Felony Train.
But Dan’s broadcast only fans the flames, and over the next couple of days, the MSM revs up. So CBS steps up its Felony Abatement Plan
Witness Tampering All Dressed Up as Protecting a Source
While Dan was getting his Stockman-esque whipping out in the woodshed by CBS Legal, the Felony Abatement Plan was rolled out.
The Washington Post’s September 10 article provided a snapshot of Pawn to Queen 4:
“CBS News released a statement yesterday standing by its reporting, saying that each of the documents ‘was thoroughly vetted by independent experts and we are convinced of their authenticity.’ The statement added that CBS reporters had verified the documents by talking to unidentified people who saw them ‘at the time they were written.’
“CBS spokeswoman Kelli Edwards declined to respond to questions raised by experts who examined copies of the papers at the request of The Washington Post, or to provide the names of the experts CBS consulted.”
Protecting its sources, like any good journalist? Or, trying to buy time to build a credible coverup?
We now know that CBS’s two experts, Emily Will and Linda James, had warned CBS of the forgeries, pre-broadcast. Now, CBS was asking its experts “not to grant interviews” and to “maintain confidentiality.”
Over the objections of CBS, and to avoid having their reputations ruined, the experts spoke with the MSM http://www.washingtonpost.com/wp-dyn/articles/A31727-2004Sep18_3.html
and rebutted CBS’s claim that the experts had authenticated the memos.
CBS’s responded by accusing its own experts of changing their stories. But since the experts had advised CBS of their concerns in writing, CBS’s hope that this would stick, was not fulfilled.
Protecting its sources, or tampering with witnesses?
Witness Tampering on The Little Old Lady
This 86 year old broad is a better distraction that Mo Dean!
Remember how nutty that Dan Rather interview with 86 year-old Knox was (Killian’s secretary)? Read the interview again, with all this in mind.
What will jump out at you is the brazen coaching and leading the witness. (And all we get is the edited version.)
Old lady Knox is coached and led by Dan and his staff, as they deploy the Felony Abatement Plan on each of the three forgery items from the statute.
(Note that CBS did NOT speak with Knox, pre-broadcast. Her statements to CBS, a week after the broadcast, could not have been CBS’s source for claiming the memos were “personal files.”)
RATHER: Knox says her boss, colonel Jerry Killian, started what she calls acover-your-back file, a personal file where she stored the memos about theproblems with Mr. Bush's performance and his failure to take a physical andthe pressure Killian felt from upstairs. She addressed this memo and areference to retired general stout pushing for a positive officer trainingreport on lieutenant Bush. And stout is pushing to sugar coat it. Does thatsound like colonel Killian? Is that the way he felt?
KNOX: That's absolutely the way he felt about that.
RATHER: And she talked about this mental moment. She doesn't believe thememo is authentic, but she says the facts behind it are very real. He didwrite a memo like this?
RATHER: So he did write a memo like this, not this one is your contention, but one like it?
KNOX: It's just like a personal journal. You write things.
RATHER: Is that what he was keeping, more or less a personal journal?
KNOX: It was more or less, that yes.
RATHER: These memos were not memos that you typed and you don't think theycame directly out of his files?
KNOX: The information, yes. It seems that somebody did see those memos, andthen tried to reproduce and maybe changed them enough so that he wouldn'tget in trouble over it.
RATHER: I understand.
KNOX: Could deny it.
RATHER: I understand.
KNOX: That's all just supposition.
RATHER: I understand.
Look, I'm no black helicopter guy, but Rather just used 50 years of reporter skills to have little old lady Knox state (without any pesky cross-examiner or Rules of Evidence in the room) that:
-The "personal files" sourcing was possible.
-Underlying original memos existed.
-They were written at the time purported.
So, we all took the bait. We howled with derision that CBS has just invented a new concept – “Fake but Accurate.”
But Dan Rather and CBS were not playing for our hearts and minds. Nor did they care about "Fake but Accurate" entering the lexicon.
They were tampering with a witness, using a checklist of the Texas felony statute, coaching and leading her to derail a train they feared.
Some enterprising and pissed off DA could make mincemeat of CBS on a tampering charge, with that Knox tape.
So you see, with the right pair of XRay goggles, CBS’s odd behavior starts to appear rational.
Normally, what was said between CBS Legal and any CBS employee is not admissible in a court of law, under evidence rules.
But the attorney-client discussions are fully admissible, "If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud." Texas Evidence Code 503; every state has a similar clause.
You can run, but you cannot hide.....