Saturday, September 11, 2004
Memogate: Was there a crime?
Various bloggers, including the Queen of all Evil (the first I know to have written on the issue), have wondered whether the forging of the Killian memos would be a crime. Volokh has some more developed thoughts on the subject here, and I'm sure there are others working away on the subject.
In any case, a former Assistant U.S. Attorney sent me an email with any number of off-the-record speculations, including the following suggestion that I have not read elsewhere:
18 USC 1017 provides:
UPDATE: A friend suggests that 18 USC 912 might apply:
If the Killian memos are forgeries, then the author pretended to be an "officer... acting under the authority of the United States...." The question would be whether the forger acted "in such pretended character" to demand or obtain something of value. Probably not, insofar as the Killian is dead, so the forger of the memos was not acting as an officer.
In any case, a former Assistant U.S. Attorney sent me an email with any number of off-the-record speculations, including the following suggestion that I have not read elsewhere:
18 USC 1017 could apply if any of the documents at issue purport to have a DoD seal or mark or letterhead. The absence of such markings could indicate some thoughtfulness about avoiding prosecution.
18 USC 1017 provides:
Whoever fraudulently or wrongfully affixes or impresses the seal of any department or agency of the United States, to or upon any certificate, instrument, commission, document, or paper or with knowledge of its fraudulent character, with wrongful or fraudulent intent, uses, buys, procures, sells, or transfers to another any such certificate, instrument, commission, document, or paper, to which or upon which said seal has been so fraudulently affixed or impressed, shall be fined under this title or imprisoned not more than five years, or both.
UPDATE: A friend suggests that 18 USC 912 might apply:
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, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.
If the Killian memos are forgeries, then the author pretended to be an "officer... acting under the authority of the United States...." The question would be whether the forger acted "in such pretended character" to demand or obtain something of value. Probably not, insofar as the Killian is dead, so the forger of the memos was not acting as an officer.
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