Michael Gaynor
We need the whole truth about Obama, ACORN, and the Landrieu sting
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By Michael Gaynor
January 28, 2010

"Exposing the corruption and criminality of the Left is essential, but 'using their own tricks' may be a slippery slope or criminal."

Michelle Malkin: "Ugh: ACORN-buster busted at Sen. Landrieu's office in alleged bugging plot; affidavit link added; Update: "Veritas"?" (January 26, 2010):

"The New Orleans Times-Picayune reports that James O'Keefe, half of the ACORN-busting duo that conducted undercover stings across the country last summer, was arrested today in an alleged wiretapping plot at the New Orleans office of Democrat Sen. Mary Landrieu. O'Keefe and three other young men were arrested by the FBI. One of the men is the son of the acting U.S. Attorney for the Western District of Louisiana.

"The Times-Picayune has not posted the full FBI affidavit, but the details they have are damning. This is neither a time to joke nor a time to recklessly accuse Democrats/liberals of setting this up nor a time to whine about media coverage double standards. Deal with what's on the table..."

That's sound advice.

Ms. Malkin's update:

"They are, of course, presumed innocent until proven guilty.

"But for now, let it be a lesson to aspiring young conservatives interested in investigative journalism: Know your limits. Know the law. Don't get carried away. And don't become what you are targeting."

PRECISELY!

In "Rule of Law, Not Alinsky's Rules/Jerry Brown v. Andrew Breitbart" (November 16, 2009) (http://www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=091116), I warned against adopting Saul Alinsky's ends-justify-means thinking:

"Last weekend Hannah Giles, who played the prostitute in the 'Pimp and Pro' ACORN videos, and Andrew Breitbart, who strategized the release of the videos, lectured on 'guerrilla warfare' at a Young America's Foundation conference in San Barbara, California.

"The Los Angeles Times article on the lecture concluded:

'"There is a new spirit alive," said Andrew Breitbart, whose website first broadcast the ACORN videos....

'When one young man asked: "Who else should we be looking out for now that ACORN has gone down? What organizations would you like us to target?" Breitbart and Giles listed a number of organizations that they said had demonstrated a "dangerous" liberal bias. Among them: the Apollo Alliance, a coalition that aims for energy independence; and the Service Employees International Union.

'Breitbart said the ACORN videos, along with the recent tea party protests, represented a shift in right-wing activism. Conservatives, he said, were co-opting the tactics used by civil rights leaders and antiwar activists of the 1960s in order to criticize the left. "We have to employ unorthodox tactics," Breitbart said. "We can beat them using their own tricks."

'As if to prove Breitbart's point, Giles asked everyone in the room to copy down the words of Saul Alinsky, who is considered the father of community organizing and is a great hero of the left.

'"All life is warfare," she quoted him as saying, "and it's the constant fight against the status quo that revitalizes society."'

"Exposing the corruption and criminality of the Left is essential, but 'using their own tricks' may be a slippery slope or criminal."

The two federal statutes involved are Sections 1036 and 1362 of Title 18. Section 1036 prohibits entering federal property under false pretenses. Section 1362 subjects to fine, imprisonment for up to ten years, or both, anyone who "willfully or maliciously injures or destroys any of the works, property, or material of any radio, telegraph, telephone or cable, line, station, or system, or other means of communication, operated or controlled by the United States, or used or intended to be used for military or civil defense functions of the United States, whether constructed or in process of construction, or willfully or maliciously interferes in any way with the working or use of any such line, or system, or willfully or maliciously obstructs, hinders, or delays the transmission of any communication over any such line, or system, or attempts or conspires to do such an act...."

Proverb: Success has many fathers, while failure is an orphan.

Andrew Breitbart took credit for masterminding the rollout of the "Pimp and Pro" ACORN videos, but pleaded complete ignorance of the sting on Senator Mary Landrieu's office in a federal building in Louisiana.

Breitbart (January 26, 2010): "We have no knowledge about or connection to any alleged acts and events involving James O'Keefe at Senator Mary Landrieu's office. We only just learned about the alleged incident this afternoon. We have no information other than what has been reported publicly by the press. Accordingly, we simply are not in a position to make any further comment."

Breitbart acknowledged connection to O'Keefe, but denied any connection to any of the other three arrested in connection with the Landrieu sting when interviewed by Hugh Hewitt.

Stan Dai, a Facebook friend of O'Keefe and a Club 100 Activist of Young America's Foundation, was one of the three others arrested with O'Keefe.

Joseph Basel, also arrested, follows both Breitbart and BigGovernment on Twitter, but they don't follow him.

Robert Flanagan, the fourth arrestee, works for The Pelican Institute, a Louisiana think tank that brought O'Keefe to town last Thursday to speak about investigative journalism at a luncheon in his honor.

Reportedly, O'Keefe admitted to entering Senator Landrieu's office (federal property) under false pretenses;

It may be that some persons got "carried away" in the belief that the law doesn't apply to well-intentioned investigators.

O'Keefe tweet: "I am a journalist. The truth shall set me free."

Don't count on being a journalist setting O'Keefe free. O'Keefe's fate will be determined based on the facts and the law. Journalists are not immune from criminal prosecution.

The "Pimp and Pro" ACORN sting involved surreptitious recording. Surreptitious recording is lawful in most states, but it is felonious in others and the law does not afford a statutory exception for professional journalists, amateur journalists, filmmakers, persons under 30 or persons over 30.

During an interview by Hugh Hewitt, Breitbart admitted to be paying O'Keefe "a fair salary" in order to use O'Keefe's "life rights," pleaded ignorance of whether O'Keefe was an employee or an independent contractor, and insisted that if there was wrongdoing, then it wasn't in "the scope of employment."

AB: ...I wanted to...make sure that the ACORN story got as much widespread dissemination as humanly possible. The videos that [O'Keefe] independently produced went on YouTube. And so Huffington Post, every single site put it out there, including my sites. What he does for the site exclusively is he tells his life rights, basically. So when he puts a story out there, it's on the Br[ei]tbart sites, the Big sites, that he can tell people what transpired. So...

HH: Do you pay him for that?

AB: Yes.

HH: And are you free to tell me how much you pay him?

AB: I'll...perhaps at another date, but he's paid a fair salary.

HH: Is [O'Keefe]...so he is an employee?

AB: I'm not sure that's technically the thing, but yes, he's paid for his life rights. And he's, you know, he's still...we reserve the right to say yes or no to any of the stories that he puts up on our site as we do to any other contributor who comes to the site.

Wikipedia: "A salary is a form of periodic payment from an employer to an employee, which may be specified in an employment contract. It is contrasted with piece wages, where each job, hour or other unit is paid separately, rather than on a periodic basis."

HH: Will it be a mischaracterization to say he was working for you when he went about this?

AB: Well, I mean, no. He was not involved in anything that was related to Big Government, or Breitbart.com.

But is that true...or was O'Keefe a salaried employee working on what would have been an exclusive at Breitbart's Big sites?

The answer does not depend upon whether an attempted sting succeeds or backfires.

Hewitt seemed to believe that a crime might have been committed by O'Keefe and tried to help Breitbart steer clear of legal involvement: HH: And I think that's the key thing. Lots of people work for lots of corporations, and do dumb and sometimes illegal things that are not within the scope of their employment. And this was not within the scope of his employment.

Breitbart was quick to grab the lifelong Hewitt threw him: AB: Yes, absolutely. That is absolutely the case.

But Breitbart himself acknowledged that he is not "objective" in describing O'Keefe.

Breitbart (September 10, 2009):

"So who is James O'Keefe?

"Morley Safer meets Sacha Baron Cohen, I think. Not precise. But you get the point.

"This isn't your mother's '60 Minutes.' But then again, why would a twenty five-year old even think straight journalism? His crowd doesn't even know who Don Hewitt is. They need it quick cut, set to music and packaged to go viral on YouTube.

"From what I gather, James wants to speak to his twenty-something peers who have been asked to pay for unaccountable big government ventures like ACORN on their maxed-out generational credit card. To the tune of potentially billions.

"Maybe James thinks, like I do, that baby boomer elites like Katie Couric, Charlie Gibson and Brian Williams could care less. Their generational zeitgeist and the knowledge that their kids are personally immune from monster deficits is all that matters. And they look the other way while believing all organizations on the left no matter how extreme are working towards their goals.

"What is immediately clear to me is that James is passionate and wants to expose corruption. As is his gutsy partner in exposing crimes, Hannah Giles. James is like me: he's idealistic, right leaning, and doesn't pretend he's a neutral and objective journalist. (No one's 'objective.')"

As the story of O'Keefe's arrest circulated, Breitbart issued another statement discouraging a rush to judgment and reflecting caution in the legally dangerous circumstances:

"...speculation is rampant, but facts are few. And basic logic suggests that there's much more to this story since there is so little information....

"Let me state clearly for the record: wiretapping is wrong. But until I hear the full story from James O'Keefe, I will not speculate as to what he was doing in Louisiana."

Breitbart's statement did not set forth his view on surreptitious recording.

In conducting the sensational "Pimp and Pro" ACORN sting trumpeted by Breitbart and Fox News, O'Keefe surreptitiously videotaped. In the District of Columbia and New York, one-party consent is lawful, but in Pennsylvania, Maryland, Florida and California, one-party consent is not enough.

At Breitbart's Big Government, California Congressman and former Attorney General Dan Lundgren recognized that Maryland state law prohibits surreptitious recording, but urged that there not be a criminal prosecution under the circumstances in the exercise of prosecutorial discretion.

Lundgren:

"It recently came to light that individuals employed by ACORN have been apparent accomplices with regard to the conduct of alleged criminal activities. Surprisingly, it was the investigative ingenuity of ordinary citizens who brought this information to the attention of the public. As a Member of Congress, these revelations are of interest to me in that ACORN is the beneficiary of substantial federal funding. As the former Attorney General of my state of California, this story is of great concern to me for an entirely different reason. Ironically, it is those who revealed the alleged illegal acts, rather than the perpetrators of those acts, who find themselves under threat of criminal prosecution. To anyone with a modicum of common sense, this would seem to turn justice on its head.

"How could this happen? Certain states, such as Maryland, have statutes prohibiting the recording of conversations without the consent of the other party. Unfortunately for the young investigative entrepreneurs, their disclosure of alleged illegal activities carried out by the ACORN employees took place in these so-called 'two party consent states' which prohibit the recording of confidential communications without the permission of all parties.

Lundgren is right about the scope of prosecutorial discretion and to the best of my knowledge Pennsylvania, Maryland and California have not proceeded beyond investigation against O'Keefe, or Hannah Giles, or anyone else as a result of the surreptitious recording.

Whether or not O'Keefe is an employee or an independent contractor, his involvement in the Louisiana matter may result in the exercise of prosecutorial discretion to prosecute instead of not prosecute.

That's not bad news only for the stars of the "Pimp and Pro" videos.

Unfortunately, most of the ACORN offices targeted are in states that criminalize surreptitious recording (including Breitbart's California).

If O'Keefe had finished his last surreptitiously videotaped visit to an ACORN office (the San Diego office on August 18, 2009) and THEN visited Breitbart in his basement seeking strategic advice for the first time, under the law Breitbart and BigGovernment.com clearly would not be subject to prosecution in California for either surreptitious videorecording or reporting what was surreptitiously recorded.

In Bartnicki v. Vopper, 532 U.S. 514 (2001), a case that involved both the federal and Pennsylvania laws against surreptitious recording, the United States Supreme Court held that a publisher who has lawfully obtained information from a source who obtained it unlawfully may not be punished by the government for the ensuing publication based on the defect in a chain.

Bottom line: Breitbart, BigGovernment and Fox News appear to be safe in publishing the "Pimp and Pro" story, because, in the words of the majority opinion in Bartnicki v. Vopper, the interest in "removing an incentive for parties to intercept private conversations does not justify applying" a statute prohibiting surreptitious recording "to an otherwise innocent disclosure of public information."

Of course, if BigGovernment.com and/or Fox News are NOT "otherwise innocent," then Ms. Giles and Mr. O'Keefe will have company on the legal hot seat.

Neither media organizations nor professional or amateur journalists or filmmakers are above the law.

Footnote 19 to the majority opinion in Bartnicki v. Vopper states: "Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. 'It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.' Branzburg v. Hayes, 408 U. S. 665, 691 (1972)."

Breitbart has a problem: O'Keefe said that he visited Breitbart in late July 2009 (not on an unspecified day in August that might have post-dated the last of the surreptitious ACORN videos).

Late July would be after the stings at the ACORN offices in Philadelphia (July 24 AM), Baltimore (July 24 PM) and Washington, D.C. (July 25), but before the stings at the ACORN offices in New York (August 4), Los Angeles (August 17), San Bernardino (August 17) and San Diego (August 18).

When O'Keefe and Breitbart first met (according to O'Keefe), O'Keefe had not done any surreptitious videotaping of west coast ACORN offices and did not have enough east coast videos to implement the plan Breitbart admittedly recommended: "Videos of five different ACORN offices in five separate cities would be released on five consecutive weekdays over a full week Baltimore, Washington, New York, San Bernardino and San Diego."

New York, San Bernardino and San Diego videos had not been made.

A constitutional statute is the law, whether we like it or not.

Entering Senator Landrieu's office under false pretenses suggests arrogance and stupidity and perhaps a reckless desire to find evidence of wrongdoing.

Predictably, ACORN Chief Organizer Bertha Lewis called O'Keefe's arrest "further evidence of his disregard for the law in pursuit of his extremist agenda" and ACORN tweeted: "Couldn't have happened to a more deserving soul."

The idiotic incident calls to mind what Richard Nixon told interviewer David Frost: "I gave them a sword, and they stuck it in."

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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