The Washington Times says
One retired Guard official, who was Mr. Killian's immediate supervisor, Maj. Gen. Bobby Hodges, was offered up by Mr. Rather as one who would substantiate that the memos were real. But yesterday Gen. Hodges told the Los Angeles Times he thought the memos were fake. One CBS executive said the general, a known Bush supporter, had changed his story.
I mentioned in an earlier post that I didn't think the Killian family could sue for libel based on CBS having put forward obviously forged documents as genuine (even if it could be proven that CBS actually forged the documents in-house rather than contracting it out).
But how about General Hodges? CBS is saying that the General verified forged documents. Moreover, he is a known Bush supporter, which makes him look pretty stupid and treacherous if he validated documents that were forged to hurt Bush. The General says he didn't do it, though. This looks like enough to get a libel suit before a jury. Before it gets to the jury, though, there is the discovery stage, in which the General would be able to use legal compulsion to get CBS to answer questions about the story under oath...
Update, a few minutes later: Powerline notes at
that the Boston Globe has a pattern of quoting people in this affair, the people saying that the Globe misquoted them, and the Globe standing by their quote. Looks like more potential libel suits to me. These "He said, she said" suits are probably tough to win-- I don't know the standard of proof needed-- but it would be enough to get them before a jury for the plaintiff (the victim) to justify himself in public and to show the falsity of the libeller.
In the case of the Globe, one person they misquoted was a documents expert. He certainly has a case for his professional reputation being damaged by them.
Update, Monday: John Fund writes:
"60 Minutes" may have a sterling reputation in journalism, but it has been burned before by forged documents. In 1997 it 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. "Mr. Camacho's reputation was tarnished significantly," Judge Judith Keep noted.
Mr. Camacho sued CBS and eventually settled for an undisclosed sum. In 1999 Leslie Stahl read an apology on the air: "We have concluded we were deceived, and ultimately, so were you, the viewers."
If Mr. Camacho could sue, so could General Hodges, I would think. I hope he does not settle out of court.
Update 2: Eugene Volokh took up my question about General Hodges and writes
The allegation that the General verified the documents, even if false, is likely not defamatory; the allegation that he had changed his story, though, likely is defamatory. They wouldn't be the strongest claims of defamation, since he'd probably have to persuade the jury that he suffered some specific damage as a result of the statements.
But more broadly, even if the General is no longer a public figure (the statements being made about him are not statements about his alleged conduct when he was still serving), he's likely a limited purpose public figure. If he talked to CBS News about the documents, he injected himself into this controversy. Even if he was later misquoted by CBS News itself, he'd still be a public figure for purposes of this debate, so that to recover he would have to prove the CBS knew its statements about him were false (or at least knew the statements were quite likely false). Maybe he could prove such knowing falsehood (e.g., they knew that I hadn't changed my story, so they lied when they said I did change it) plus damages; but that's what he would indeed have to prove, and showing negligence isn't enough.
Professor Volokh also discusses what, in general, would be desirable for lying in public affairs. I quite agree with him that stripping TV stations of their licenses and criminal prosecutions are tools likely to be abused. I disagree with him somewhat about libel suits not being useful. Libel suits help because they force the parties to confront each other's charges in a formal setting with an umpire, the judge. To use Rathergate as an example, a libel suit would compel CBS to produce the documents it says it has, to tell us the names of the experts it says it has, to describe its internal checking process, and to answer questions under cross examination. The jury decision and the actual damages are the least important part of the suit. In fact, the best law might be to allow suits for lying in public matters, and even a jury decision, but no damages. That would avoid one of the two bad things that comes to mind about libel suits: that the jury and judge might award ridiculous damages against an unpopular defendant despite the evidence. (The other bad thing is that civil suits take years to finish-- so in Rathergate, the suit wouldn't do much till long after the 2004 election, though so far this is more about CBS than about the politicians.)