Analyst suggests MSNBC, Joy Reid could face charges for bringing false hacking claims to FBI

Writing at Law and Crime, Colin Kalmbacher said on Saturday that MSNBC and liberal talking head Joy Reid could face legal trouble over recently-discovered homophobic blog posts she claimed were fabricated by hackers.

Kalmbacher explains:

MSNBC personality Joy-Ann Reid appears to have changed her story about those homophobic blog posts. And with this sea change in Reid’s defense, there could be legal trouble ahead.

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At first, Reid claimed she was hacked. That story completely fell apart when The Daily Beast–where Reid had her own column until it was suspended over those same posts–published a thorough dissection and dismissal of Reid’s claims.

In no uncertain terms, Kevin Poulsen writes, “the evidence provided crumbles under scrutiny.” Citing to  alleged “evidence” obtained by Reid’s “cybersecurity expert,” Jonathan Nichols, Poulsen observes, “Blog posts that Nichols claimed do not appear on the Internet Archive are, in fact, there. The indicators of hacked posts don’t bear out.”

Oops…

On Saturday, Reid claimed:

I genuinely do not believe I wrote those hateful things because they are completely alien to me. But I can definitely understand, based on things I have tweeted and I have written in the past, why some people don’t believe me…I can only say that the person I am now is not the person I was then. I like to think I’ve gotten better as a person over time — that I’m still growing. That I’m not the same person I was 10, or five, or even one year ago. And I know that my goal is to try to be a better person, and a better ally.

Put simply, “Reid’s tune shifted from neutral to reverse,” Kalmbacher said.

It gets worse, as Kalmbacher explains:

…[I]t almost certainly appears to be the case that Reid and/or MSNBC filed a report with the FBI–and many have suggested this report itself was false. Did they know they were relying on apparently false information when they filed it? Could this qualify as a false statement under 18 USC §1001?

This can get a bit tricky. Section 1001 has a “knowingly and willfully” knowledge requirement. According to the U.S. Attorney’s Manual (USAM), this means, a person making false statements to the FBI must have (1) made a statement deliberately and with knowledge that the statement was being made (taking care of “willfully”); and (2) that the statement was made with some intent to deceive or with some knowledge of its falsity (taking care of “knowingly”).

Here, Reid could have relied upon the Nichols “research” for her own opinion about the once-disputed posts. If she did, that would seemingly defeat a finding that she (or whoever filed the complaint) “knowingly” made false statements to the FBI. But if Reid really did lie about the posts in the first place then she simply used Nichols as a conduit for those lies–and relying on Nichols to launder false accusations wouldn’t really work to Reid’s favor. This is an extremely fact-intensive inquiry–and one precisely suited for a federal investigator.

Additionally, the USAM notes, “A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant’s knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth.”

Here, there’s a very good argument that Reid’s choices (like relying on Nichols) in allegedly attempting to ascertain the truth–again, if this is even what really happened–were actually keyed to obscure the truth. But if it turns out the hacking claims were as false as they appear and if Reid ever fully and eventually admits to their falsity, then any attempt to claim otherwise would be, well, just another misrepresentation.

Kalmbacher says there is one important caveat, citing Fair Media Watch’s Adam H. Johnson, who tweeted: ‘If you read the lawyer’s statement it never specifies the hacking being investigated was in regards to the anti-gay posts. In fact it strangely does not; just makes vague references to hacking which she could very well have been, at some point, been a victim of.”

Kalmbacher concludes: “Until we see the actual report Reid and/or her people likely filed with the FBI, there’s no way to know for sure. But if Reid, Reichman, Nichols or anyone else at MSNBC did file a report with the FBI over the alleged (now disproven and abandoned) hacking claims viz. those homophobic blog posts, there could be legal trouble ahead.”

A post at Barracuda Brigade asked: “But Joy Reid is an America-hating swamp sock puppet, so will the FBI just pat her on the back, right?”

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