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More Than Scandal, CBS Saga May Indicate Crime

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 (search) weekend meeting with retired National Guardsman Bill Burkett (search). 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 (search) 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 (search) 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.

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