Forgery of documents intended to be used in an election:

If the Killian letters (the ones that purport to relate to aspects of President Bush's National Guard service) are indeed forged, the forger might be criminally prosecuted.

My sense is that most forgery statutes don't apply to frauds aimed at influencing votes, rather than to getting money or property or the like. I might be mistaken, but that's what my tentative looking around suggests. Nonetheless, I've found at least two statutes (one with the help of reader William Modahl, who also raised the broader question for me) that specifically do prohibit election-related frauds:

1. NH Rev Stat 666:6: "Any person who shall, without authority, sign the name of any other person to any letter or other document, or falsely represent that any other has written such letter or document, knowing such representation to be false, for the purpose of influencing votes, . . . shall be guilty of a misdemeanor."

2. Ohio Rev. Code § 3517.21: "No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign . . . [f]alsely identify the source of a statement, [or] issue statements under the name of another person without authorization." [R.C. § 3517.992 makes this a misdemeanor.]

Of course, the forgery likely wasn't done in New Hampshire or Ohio. But my sense — again, tentative — is that because the forgery was likely an attempt to influence (among other things) elections conducted by New Hampshire and Ohio of Hampshire and Ohio presidential electors, those states would indeed have jurisdiction to try the forgers. If any jurisdiction experts can tell me I'm wrong, please do.

But what about the First Amendment? The Court has generally suggested that knowing falsehoods lack constitutional value, and thus can be punished. Knowing falsehoods about the government, however, seem to be categorically protected even though they're deliberate lies (see New York Times v. Sullivan); and at least one state court has struck down a general ban on knowingly false statements in election campaigns, theorizing that the First Amendment exception isn't for lies generally, but only for specific kinds of lies, such as libel, fraud, perjury, and the like. See State ex rel. Public Disclosure Comm'n v. 119 Vote No! Committee, 135 Wash. 2d 618 (1998).

On the other hand, courts have upheld the Ohio bans on knowingly false statements in election campaigns, see, e.g., State v. Davis, 27 Ohio App.3d 65 (1985); Briggs v. Ohio Elections Com'n, 61 F.3d 487, 494 (6th Cir. 1995). And this false statement seems to be a false statement about a particular person (whether or not it's actually libelous), which would make it pretty clearly unprotected both under the libel cases (e.g., New York Times v. Sullivan) and the false light cases (e.g., Time v. Hill). Under normal tort law rules, the statement might or might not be actionable; but I think that the First Amendment doesn't impose any constitutional barrier to punishing it.

Note that the knowledge requirement means (quite rightly) that if CBS was the unknowing victim of the fraud (if, of course, there was a fraud), it and its reporters wouldn't be criminally liable.

More on forgery:

A bunch of people e-mailed me to say that surely forging a letter from a military officer, which ostensibly came from a military file, must violate some federal statute, and not just the couple of state election law statutes I mentioned here. Well, that was my intuition, too, but a quick search didn't reveal any such general statutes. Federal forgery law is a set of specific prohibitions on forging specific kinds of documents, and I couldn't find anything that would cover this sort of letter. Likewise, prohibitions on fraud generally involve fraud intended to get something of value from someone, but not including their opinions or their votes.

I may well have missed something — I'm not a specialist on forgery and fraud laws, and my searches were cursory. If you find a statute that would cover this, please e-mail me its citation and its text, and if it pans out, I'll gladly blog about it. But for now, I don't see it; I only see the two state misdemeanor statutes, focused on false statements aimed at affecting elections.

UPDATE: A couple of people suggest that 18 U.S.C. sec. 1001 might apply here; this is the general federal false statement statute, which provides (in most relevant part),

Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

As best I can tell, though, "in any matter within the jurisdiction" has been read to refer to any statement made to the government. I don't think that making a false writing thats purport to be a statement by the government qualifies; none of the sec. 1001 cases that I've seen fit that mold. If anyone is aware of any cases involving such a use of sec. 1001, please let me know. Others suggested that the mail fraud statute, 18 U.S.C. sec. 1341, might cover this (if some part of the scheme was carried out through the mails or through some interstate carrier). But as best I can tell, while sec. 1341 prohibits false statements used to "defraud," that term has been read as limited to cheating people out of their property or other similarly valuable things. Lying to people to get them simply to believe something, or to vote a certain way has generally not been treated as fraud for legal purposes.

But what if someone is lying in a public debate?

The posts above all assume that the people at CBS were at worst negligent (again, assuming they were wrong, which has not been proven but which I'm just assuming for purposes of the legal analysis). But what if someone -- for instance, the forger, or even someone in the media -- does lie in a public debate? What would and should happen then, legally?

As I've mentioned above, some states do criminalize certain kinds of knowingly false statements in public debate. Also, libel law does allow recovery, including punitive damages, for knowingly or recklessly false defamatory statements about public figures on matters of public concern. ("Recklessness" here refers not to being grossly negligent, but to knowing that the statements are likely false and proceeding in any event without adequate checking -- it's closer to knowledge than to negligence.)

Nonetheless, I think we should be wary of prosecution and even litigation even in such situations. Unfortunately, the judicial process is a highly imperfect means of getting at the truth, especially on politically charged questions. Historical matters are best decided, I think, in public debate (for all its flaws) rather than in a courtroom.

Obviously, false statements in political campaigns are harmful to the voters and to our political system. But prosecution seems to me to be a remedy that's worse than the disease -- especially since of course it won't just be the obvious liars who are prosecuted, but potentially anyone who a prosecutor (who often himself has political alliances and political ambitions) thinks is a liar. We all know how often charges of lying are batted about over what ends up being an honest disagreement. And if such prosecutions became routine, lots of people would understandably be deterred from saying even things that are true (or that are opinions).

In some limited situations, where there's a smoking gun -- and there may be classes of cases like that, for instance when people misdescribe their own military record, see, e.g., Pittsburgh Post-Gazette, Dec. 17, 1996, at A10 (discussing prosecution of former Rep. Wes Cooley for supposedly lying to Oregon voters in a ballet pamphlet about his Korean War experience), or when someone forges a document -- the arguments against criminal prosecution might be weaker. Perhaps one could come up with a crisp legal principle, or a crisp political norm for prosecutorial behavior, that would limit prosecutions to such open-and-shut cases. But I'm not sure that this is so, and I wouldn't like the norms to evolve towards using prosecutions as a routine tool whenever prosecutors think that some candidate is lying.

The case for allowing libel lawsuits is stronger, because in addition to the harm to the voters and the political process, there could also be harm to a particular person's reputation and livelihood. Moreover, such lawsuits are certainly firmly historically rooted, and New York Times v. Sullivan, for all its concern about protecting speech both against wrongful punishment and against deterrence by the fear of wrongful punishment, nonetheless preserved such lawsuits in cases where the plaintiff has evidence that the defendant was knowingly lying. (Three dissenters, Justices Black, Douglas, and Goldberg would have completely eliminated libel lawsuits over statements related to matters of public concern, precisely because of a fear that the judicial process will often err in such cases; but the majority, including Justice Brennan and Chief Justice Warren, disagreed.) I can't say that such lawsuits are, or even should be, unconstitutional. Still, I'm not wild about them, because I don't have great confidence in the abilities of juries to decide historical questions.

Finally, note that historically sitting government officials (especially high officials) don't file libel lawsuits even when they think someone has been lying about them. It's often seen as beneath the person's dignity. It's likely to focus the public's attention on the false charges. It's likely to waste a lot of the official's time and attention. And while it may let the official get access to the defendant news organization's internal documents, and force the reporters and managers to testify about what they knew when -- something that might well be quite embarrassing to the news organization, and that might strengthen the official's case -- it also lets the news organization get discovery against the official. The organization might, for instance, require the official to give depositions about other matters related to the controversy (since that would be relevant to whether the charges were substantially accurate even if some aspects of them were clearly literally false), a prospect that many officials might not relish.

So the bottom line: For all these reasons, I think that public criticism, for all its flaws, is a much better remedy for media negligence and even for media, candidate, or commentator lies than is either civil litigation or criminal prosecution.

Possible criminal violations by the memo forger

(if the memos were indeed forged): As I'd mentioned a few days ago, it's surprisingly hard to find laws that prohibit this sort of forgery. Using false statements, including forgeries, to get money or many other valuable things is surely illegal. But the law generally does not criminalize lies as such, when what you're trying to get using the lies is a change in another's political opinion, or for that matter likely vote. Maybe that's right and maybe it's wrong, but there it is. I noted a couple of state misdemeanor statutes that bar certain false statements during election campaigns, but they seem like the exception rather than the rule (though perhaps they could be used against this very forger).

Matt (Stop the Bleating!) points to one possible alternative, 18 U.S.C. sec. 912, which says that "Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money . . . or thing of value, shall be [punished]." But this requires not just impersonation but also "act[ing]" as the officer, and lower court decisions, the Justice Department's interpretation, and an inference from the text of the statute (the "demands or obtains" clause, which would be superfluous if any impersonation was per se punishable as "act[ing]") suggest that impersonation isn't enough. (Matt talks more about this, and also explains why the statute covers more than just in-person impersonation.)

Troy Hinrichs points to Texas Penal Code sec. 32.21, which forbids "forg[ing] a writing with intent to defraud or harm another" (emphasis added); Texas Penal Code sec. 1.07 defines "harm" to mean "anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested." Reputational harm would probably qualify, but harm in the sense of becoming deluded about some historical fact and voting the wrong way might not. I doubt therefore that if the writing were forged outside Texas, the forgery would be a crime in Texas, even if Bush (the harmed party) is still a Texas citizen.

Markham Pyle and Simon Stevens point to Texas Penal Code sec. 37.10, which seems to be more clearly on point, since it criminalizes (among other things) "mak[ing], present[ing], or us[ing] any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." That probably covers things, so long as the memos are treated as "governmental record[s]," though again it's not clear whether Texas would have jurisdiction simply because the records purport to be Texas records (probably, but I'm not sure).

Another reader pointed to this OpinionJournal story, which discusses a seemingly similar incident:

In 1997 ["60 Minutes"] broadcast a report alleging that U.S. Customs Service inspectors looked the other way as drugs crossed the Mexican border at San Diego. The story's prize exhibit was a memo from Rudy Comacho, head of the San Diego customs office, ordering that vehicles belonging to one trucking company should be given special leniency in crossing the border. The memo was given to "60 Minutes" by Mike Horner, a former customs inspector who had left the service five years earlier. When asked by CBS for additional proof, he sent another copy with an official stamp on it.

CBS did not interview Mr. Camacho for its story. "It was horrible for him," says Bill Anthony, at the time head of public affairs for the Customs Service. "For 18 months, internal affairs and the Secret Service had him under a cloud while they established that Horner had forged the document out of bitterness over how he'd been treated." In 2000, Mr. Horner admitted he forged the memo "for media exposure" and was sentenced to 10 months in federal prison. . . .

Sounds on point, but a 2000 news story reports that Horner "pleaded guilty to conspiracy to obstruct a U.S. Senate investigation and to lying to the FBI agents who investigated the memorandum's origin" — what got him wasn't the forgery itself, but the interference with a particular government investigation.

So forgery for purposes of a political hoax (rather than to get money) seems safer than one might have at first thought, though, kids, don't try it at home . . . .

William Safire apparently errs about possible federal fraud prosecution:

William Safire writes:

"Whoever, having devised any scheme or artifice to defraud transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both." [18 U.S.C. sec. 1343.] . . .

At the root of what is today treated as an embarrassing blunder by duped CBS journalists may turn out to be a felony by its faithless sources.

Some person or persons conceived a scheme to create a series of false Texas Air National Guard documents and append a photocopied signature to one of them. The perpetrator then helped cause the fraudulent file to be transmitted by means of television communication to millions of voters for the purpose of influencing a federal election. . . .

I don't think that attempts to dupe voters into believe something qualify as attempts "to defraud." The Supreme Court has held, in McNally v. United States (1987),

[T]he words "to defraud" commonly refer "to wronging one in his property rights by dishonest methods or schemes," and "usually signify the deprivation of something of value by trick, deceit, chicane or overreaching." . . . We believe that Congress' intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes [i.e., frauds involving money and property]. . . . [W]e read [sec.] 1341 as limited in scope to the protection of property rights. . . .

Congress later provided that sec. 1343 also applied to "scheme[s] or artifice[s] to deprive another of the intangible right of honest services," 18 U.S.C. sec. 1346, which allowed prosecutions of corrupt government officials whose conduct deprived the public of its right to the officials' honest services. But Congress did not extend sec. 1343 to cover all deliberate lies, or even deliberate lies that are aimed at duping voters (or lies that give the liar access to campaign officials, which Safire suggests this lie might have done). So some statutes — see the posts noted below — might indeed punish such forgeries. But they aren't as easy to find as one might like, and sec. 1343 isn't one.