Michael Gaynor
Will Andrew Breitbart somehow whitewash James O'Keefe?
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By Michael Gaynor
June 2, 2010

There was nothing about O'Keefe being penitent, chastened, or wiser as a result of pleading guilty to a federal crime in either the Memorial Day article or the video interview included with the article...or about O'Keefe having escaped criminal prosecution in California because his attorneys traded unedited ACORN videotapes for immunity.

Andrew Breitbart is trying very hard to deflect attention from the fact that James O'Keefe pleaded guilty to a federal crime. (Breitbart publicly stated soon after O'Keefe was arrested in connection with the Louisiana caper that he was not sure whether O'Keefe was an employee or an independent contractor and I have not noticed a statement at Breitbart's BigGovernment.com clarifying O'Keefe's status, but perhaps Breitbart is still working on posting the receipts in connection with the "Pimp and Pro" ACORN sting that he promised to post last September.)

Breitbart's Big Government.com debuted on September 10, 2010 with the "Pimp and Pro" ACORN story, starring O'Keefe and Hannah Giles. Breitbart claimed credit for the media strategy, but NOT for the selection of any ACORN office targets or any of the videotaping (some legal, some not legal).

"Publius" posts at Andrew Breitbart's BigGovernment.com are posts in the name of the Big Government Editorial Board.

On May 26, 2010, "Publius" posted an AP report on the end of the prosecution of James O'Keefe and his three helpers in the loony Louisiana caper.

AP:

"Four conservative activists accused of trying to tamper with the phones in Sen. Mary Landrieu's office have pleaded guilty to misdemeanor charges of entering federal property under false pretenses. The most prominent activist, James O'Keefe, was sentenced to three years probation, 100 hours of community service and fined a $1,500 fine. The 25-year-old is known for wearing a pimp costume in a video that embarrassed ACORN.

"Magistrate Daniel Knowles III sentenced the three others to two years probation, 75 hours of community service and fined them $1,500.

The FBI has said O'Keefe used his cell phone to try to capture video of two men who posed as telephone repairmen and asked to see the phones. O'Keefe spokesman Denis Calabrese disputed an earlier allegation that a fourth suspect waited in a car with a listening device, which was not mentioned in court records."

Bottom line: for the crime, no jail time!

Entering a federal building under false pretenses and seeking access to a United States Senator's telephone system, especially after September 11, 2001, was loony, BUT having the son of a federal prosecutor as part of the posse was smart!

An AP update reported that O'Keefe "told a judge he regretted his attempt to surreptitiously film Sen. Mary Landrieu's office, but said after the hearing he planned more undercover investigations."

Initially, O'Keefe appeared proud of himself, not regretful. For his court appearance, he flip flopped. Afterward, he told Eric Shawn of Fox News that he did not think he had done anything wrong (http://bigjournalism.com/fross/2010/05/30/okeefes-lawyer-speaks-theres-been-tremendous-misinformation-out-there/).

Obviously O'Keefe's public image urgently needs rehabilitation. "Publius" promptly began to protect its investment in O'Keefe with a series of posts portraying O'Keefe as a heroic victim instead of part of the problem and celebrated Memorial Day 2010 by declaring (http://biggovernment.com/publius/2010/05/31/okeefe-speaks-to-reporters-on-courthouse-steps-in-new-orleans/#more-126810):

"A newly emboldened James O'Keefe speaks to reporters moments after receiving probation for a misdemeanor in New Orleans.

"He promises new videos in the spirit of the ACORN investigation he engineered with Hannah Giles last fall.

"Stay connected to Big Government for the latest breaking reports from O'Keefe in the coming weeks."

O'Keefe promoted himself and declared his intention to create "an army of investigative journalists nationwide" to expose corruption in "organizations across the country, public and private, Democrat and Republican, left and right." There was nothing about O'Keefe being penitent, chastened, or wiser as a result of pleading guilty to a federal crime in either the Memorial Day article or the video interview included with the article...or about O'Keefe having escaped criminal prosecution in California because his attorneys traded unedited ACORN videotapes for immunity.

Big Government quickly followed its post on O'Keefe and his accomplices pleading guilty to a federal crime with a post asserting that...O'Keefe is a victim!

If it seems that O'Keefe et al. are using the same playbook as ACORN, that's probably because...they are! (ACORN chief organizer Bertha Lewis needs to laugh these days, and "Publius" accommodated her.)

In the Saul Alinsky tradition memorialized in Rules for Radicals, "Publius" quickly went on offense in an article titled "Did the U.S.Government Leak James O'Keefe's Attorney/Cleint (sic) Privileged Materials?" (http://biggovernment.com/publius/2010/05/26/did-the-u-s-government-leak-james-okeefes-private-emails-to-the-press/).

"Publius" reported that O'Keefe attorneys not only claimed to have "confirmed" that the prosecution had leaked the email, but also that the leak "appears to [have been] intentionally calculated to foment negative public opinion against Mr. O'Keefe, presumably in an unethical effort to prejudice any criminal proceedings... a clear violation of Chapters 1-7.500 and 1-7.600 (E) of the United States Attorneys' Manual as well as a prosecutor's ethical obligations..."

The only "evidence" "Publius" presented was a conclusory letter from O'Keefe's lawyers.

IF that claim is true, and IF the United States Justice Department gave a better plea deal than it would have if there had been no leaking, it's a double outrage (but good news for the four who pleaded guilty).

What is ironic (and hypocritical) is that "Publius" suddenly shifted from its truth-trumps-personal privacy attitude used to defend the "Pimp and Pro" ACORN sting to rail against an alleged violation of O'Keefe's privacy. (Prosecuting authorities in both Brooklyn, New York and Sacramento, California reported that "Pimp and Pro" videos were heavily edited, but there is no claim that the O'Keefe email was edited in a misleading way before it alleged was provided to media.)

"Publius" never disapproved of O'Keefe's surreptitious videotaping in Pennsylvania, Maryland and California, states in which privacy is protected to the extent that all parties must consent for recording to be lawful.

In a subsequent post at Big Government, "Court Document Reveals Government's Admission That It Lacked Evidence O'Keefe, Others Intended to Commit Felony At Landrieu's Office" (http://biggovernment.com/patterico/2010/05/28/court-document-reveals-governments-admission-that-it-lacked-evidence-okeefe-others-intended-to-commit-felony-at-landrieus-office/), it is asserted that "[t]he U.S. Attorney's Office for the Eastern District of Louisiana has filed a court document admitting that James O'Keefe did not intend to tamper with the phones at Mary Landrieu's office, or commit any other felony."

An examination of the document shows that it does NOT support that assertion.

The document states that the parties "stipulate and agree that the above facts are true and that they set forth a sufficient factual basis for the crime to which the defendants are pleading guilty."

Above it was stated in pertinent part: "In this case, further investigation did not uncover evidence that the defendants intended to commit any felony after the entry by false pretenses despite their initial statements to the staff of the Senatorial office and GSA requesting access to the central phone system. Instead, the Government's evidence would show that the defendants misrepresented themselves and their purpose for gaining access to the central phone system to orchestrate a conversation about phone calls to the senator's staff and capture the conversation on video, not to actually tamper with the phone system, or to commit any other felony."

The absence of evidence of guilt is not proof of innocence. (That's why North Carolina Attorney General Roy Cooper's declaration that the Duke Three were "innocent," not merely that the State could not prove them guilty, was so cherished.

Still, Big Government was upset that the story was not that part of the stipulation and posted an article stating: "What's more, the Government apparently didn't want to publicize this embarrassing part of the agreed-upon facts, omitting any mention of it in their press release and attempting not to read it in open court, until the defense attorneys caught the AUSA's omission."

Like the prosecution, BigGovernment also was selective about what it says.

In California, O'Keefe and Giles traded unedited videos for immunity from prosecution.

http://ag.ca.gov/cms_attachments/press/pdfs/n1888_acorn_report.pdf) stated: "O'Keefe and Giles agreed to produce the full recordings if the Attorney General agreed not to prosecute them for violations of California's privacy laws. This Office determined that the fastest and most efficient means to comply with the Governor's request was to agree not to prosecute." The report further indicates that O'Keefe and Giles were wise to refuse to cooperate unless they received immunity, because the facts presented strongly suggest that O'Keefe and Giles's violated state privacy laws and warned that this type of activity can be prosecuted in California.

"Liability Under California Law for Making Covert Recording of confidential Conversation

"California law generally prohibits the recording of confidential communications without the consent of all participants where there is an objectively reasonable expectation that the conversation is not being overheard or recorded. to meet the Governor's request to investigate ACORN, this Office needed the complete, unedited video and audio recordings made by O'Keefe and Giles, who are not in California. O'Keefe and Giles agreed to produce the full recordings if the Attorney General agreed not to prosecute them for violations of California's privacy laws. This Office determined that the fastest and most efficient means to comply with the Governor's request was to agree not to prosecute.

"In light of this limited grant of immunity, we did not focus on the circumstances surrounding the conversations to determine if the recordings themselves violated California law. Nevertheless, we take this opportunity to note the legal principles governing clandestine recording of conversations in California. Whether a recording of a conversation is unlawful depends on the circumstances of the conversation and the expectations of the parties. In 1967, the California legislature adopted the Invasion of Privacy Act, codified at penal Law sections 630 through 638. The Act is designed to protect the right of privacy by requiring the consent of all parties before a confidential conversation is recorded. (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768-769 (Flanagan.) The eavesdropping and recording provision, section 632, provides that any person who intentionally and without consent of all parties to a confidential communication records such conversation is guilty of an alternate felony/misdemeanor. (Penal Code, 632(a).) A private right of action also exists for any person injured by a violation of the Act. (Id., 637.2) Section 632 defines confidential communication to include 'any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.' (Id., 632(c).) A communication made in a public place or 'in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded' does not qualify as a confidential communication under the statute. (Id.) Confidentiality 'appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is "listening in" or overhearing the conversation.' (Flanagan, 27 Cal. 4th at pp. 772-773.) The fact that the subject matter of the conversation might later be discussed with a third party has no bearing on a finding of confidentiality under the statute. (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929.) Although the Act contains exemptions for particular individuals or circumstances, no exemption exists for filmmakers, the media or journalists.

"An application of these principles to the facts presented here strongly suggests that O'Keefe and Giles[] violated state privacy laws and provides fair warning to them and others that this type of activity can be prosecuted in California."

In reporting on the conclusion of O'Keefe's prosecution, Big Government omitted that. In fact, Big Government has not yet report on the California Attorney General's report, released on April 1, 2010 and available here: http://ag.ca.gov/cms_attachments/press/pdfs/n1888_acorn_report.pdf.

Blogger "Patterico," a Los Angeles County prosecutor, wrote: "...the Government sought to bury this admission by omitting it from their press release, and attempting to avoid reading it aloud in court when setting forth the factual basis.... I think it's time to start asking the U.S. Attorney's Office why they tried to hide this language from the public. It's also time to ask Big Media why they aren't reporting on this."

"Big Media," Big Government and the press release writers all chose what they want and don't want to report!

It is wise to read underlying documents instead of to rely on either government press releases or Big Government to tell you all you should know and characterize correctly.

"Publius" further tried to deflect attention from the guilt plea by complaining that O'Keefe was denied the fruits of the crime to which he and his accomplices had pleaded guilty, in an article titled "Feds Scrubbed Video from O'Keefe's Phone Used in LA Caper" (http://biggovernment.com/publius/2010/05/29/feds-scrubbed-video-from-okeefes-phone-used-in-la-caper/). (Imagine the frustration of being deprived of the surreptitious recording criminally made under false pretenses.)

Publius (quoting AP):

"Conservative activist-videographer James O'Keefe said video he shot of conversations with staffers of U.S. Sen. Mary Landrieu was deleted when his cell phone was returned after he and three others pleaded guilty to charges in a caper he orchestrated at the Democrat's New Orleans office.

"A spokeswoman for the U.S. attorney's office said Saturday that U.S. Magistrate Daniel Knowles III ordered the footage removed. O'Keefe made the claim Friday in a posting on his Twitter social networking site."

At least that's all true and not misleading.

But "Publius" (quoting AP) added: ""The FBI has said O'Keefe used his cell phone to try to capture video of two others who posed as telephone repairmen and asked to see the phones at Landrieu's office. O'Keefe has said the group was trying to investigate complaints that constituents calling Landrieu's office couldn't get through to criticize the Democrat's support of a health care reform bill."

Actually, O'Keefe and his lead attorney, Michael Madigan (a reoublican who supported Obama in 2008 and Eric Holder for United States Attorney General and helped O'Keefe get a great deal) signed a "factual basis" stipulating that "O'KEEFE positioned a digital recording device made to look like a cellular telephone in his hand so as to record BASEL and FLANAGAN" and "continued to record the office and the remaining staff members" after Basel and Flanagan left the office (http://patterico.com/files/2010/05/OKeefe-Factual-Basis-Final-Signed-Version.pdf).

Bottom line: The Magistrate Judge denied O'Keefe the fruits of his crime, but that did not cover up the facts shown on the recording, because the "factual basis" stipulated: "One of Senator Landrieu's staff members (WITNESS 1) told BASEL and FLANAGAN that she did not report any phone problems and that the office was not experiencing any issues with the phone system."

The solution to lawlessness is enforcement of law, not more lawlessness, O'Keefe and his accomplices all pleaded guilty to a federal crime and the antidote for slanted reporting is the whole truth.

© 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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