More Than Scandal, CBS Saga May Indicate Crime

By Matt Hayes

As any police officer or prosecutor will tell you, there is a remarkable
consistency in the statements made by people pulled over by police while
driving a stolen vehicle.

"I didn't know it was stolen. I just bought it from this guy I met," the
driver will say. When pressed for details, the driver will usually insist
that he bought the nearly new vehicle for about $1000, almost always from an
unknown individual or person whose name doesn't check out, customarily at
about 4:00 a.m., on a street whose name he can't recall.

Prosecutors use these statements as evidence of a consciousness of guilt.
That, combined with possession of the stolen vehicle, is enough to secure a
criminal conviction.

Much has been written about CBS' concession that it can no longer vouch for
the authenticity of the documents that served as the foundation of its Bush
National Guard story. But another story is developing, one that could
possibly lead someone not just to public humiliation, but to a jail cell.

The watershed event for CBS was Dan Rather's weekend meeting with retired
National Guardsman Bill Burkett. During the meeting, Burkett said something
that dislodged CBS from its death grip on the assertion that the story was
true. CBS' about-face suggests that whatever Burkett conveyed to Rather that
weekend was something wholly different from whatever he had originally
presented to the network as a rational and consistent explanation of the
memos' origin. This "something" suggested to the network that the creation
of the memos might actually constitute a crime.

In Texas, the state in which Burkett concedes the false National Guard memos
originated, it is a felony to make or present two or more documents with
knowledge of their falsity and with intent that they be taken as a genuine
governmental record. Under the U.S. Code, use of an interstate telephone
wire, such as the one used to transmit an image of the forged documents from
Texas to CBS headquarters, triggers federal jurisdiction.

Burkett's recent statements are just as amusing as those given by drivers of
stolen vehicles, and anyone hearing them could be forgiven for thinking that
there really is no source for the memos other than Burkett. (His National
Guard background certainly gives him the knowledge to write a memo that
might not look convincing, but at least contains the jargon to sound
convincing.)

We will probably never know just what Burkett confessed to Rather that
weekend, but he said enough for CBS to almost immediately state that it had
been "misled" as to the as original source of the documents. Though we don't
know the identity of that source, the vast majority of experts agree that it
was someone who did his or her typing at a personal computer loaded with
Microsoft Word.

Burkett now asks us to understand that if CBS was misled, it was because he
was only trying to protect someone named "Lucy Ramirez," an individual who
Burkett now alleges provided him with the documents. To date, no media
organization, including USA Today and CBS (which now has a huge incentive to
track down and verify everything Burkett has ever said) has been able to
locate such a person.

Burkett now insists that he presented the documents to CBS with the proviso
that CBS verify them, but there is plenty of evidence that this conversation
never took place, and that Burkett in fact presented them as genuine
National Guard documents. Indeed, CBS has insisted that prior to broadcast,
it was satisfied after speaking with Burkett - whom they dubbed an
"unimpeachable source" - that the two memos were real.

It defies logic that Burkett would first lie to CBS about the documents'
source in an effort to foil verification (as he now suddenly says he did),
and then tell CBS that the documents required verification. But if this is
in fact the case, Burkett not only frustrated CBS' verification efforts, but
necessarily closed his eyes to what otherwise would have been obvious to
him: that the documents were fakes. That alone would probably be enough to
satisfy a jury that Burkett knew the documents were fake when he presented
them to CBS, which would result in a criminal conviction in a Texas court.

CBS has cause for concern, too. The documents were not just forged; they
were obviously forged to the generation over age 40, which has used both a
typewriter and a computer to write; CBS did not have to be misled about the
source of the documents to be tipped that the documents were not real. While
Burkett might have been willfully blind to things that would indicate that
the memos were fake, there is mounting evidence that even CBS' experts told
producers of 60 Minutes II that they could not verify that the documents
were real. The story was aired - or in the terms of the Texas forgery
statute, "presented" - in spite of this.

If Lucy Ramirez is real, then Bill Burkett and CBS should find her as soon
as possible. Burkett in particular is mired in evidence that he created the
two memos claiming President Bush shirked his National Guard service, and
CBS is faced with deliberately ignoring the many facts, not to mention
expert opinions, that would have told a more vigilant organization that the
memos were fabricated.

Until Lucy Ramirez is found, Bill Burkett is driving around in that brand
new car at 4:00 a.m., waiting to be pulled over.

Matt Hayes began practicing immigration law shortly after graduating from
Pace University School of Law in 1994, representing new immigrants in civil
and criminal matters. He is the author of The New Immigration Law and
Practice, to be published in October.