Conservative filmmaker James O’Keefe has gone public with what is likely to be his defense at trial to the felony charge that he entered federal property with “false pretenses for the purpose of committing a felony.”
In a statement published on bigovernment.com, O’Keefe says that he was merely trying to refute the claim of Landrieu that her office could not field constituent calls because her telephones had been “jammed for weeks.” He said “I decided to investigate why a representative of the people would be out of touch with her constituents for ‘weeks’ because her phones were broken. . . . In investigating this matter, we decided to visit Sen. Landrieu’s district office — the people’s office — to ask the staff if their phones were working.”
The description in the affidavit shows more than asking the staff if their phones were working. They asked to see the main telephone system. Such a stunt is particularly dangerous at a time of terroristic concerns. Any number of political extremists could claim to be journalists in trying to infiltrate secure areas. Moreover, such stunts can lead to unpredictable responses from security personnel, including lockdowns and detaining large numbers of individuals. It is a perfectly moronic practice that raises questions of not just O’Keefe’s judgment but his mental faculties.
O’Keefe’s continued public statements show a lack of control and caution in this criminal defense case. Most attorneys bar clients from making such comments. While there has been no confirmation of the reported gag order in the case, O’Keefe was reportedly told to “avoid all contact, directly or indirectly, with any persons who are or who may become a victim or potential witness in the subject investigation or prosecution on including but not limited to: unless for business purposes only.” That would not normally bar public comments, but his public statements could trigger a formal gag order in the case. Putting aside of rules restricting public statements in local rules (and any possible gag order), it is always a high-risk practice. O’Keefe is now locked into this defense because of his public statements. They can be admitted at trial. Moreover, if he decides not to take the stand, his public comments are likely to magnify the suspicions of the jury. In a case that is likely to turn on the jury’s view of motivation and intent, such presumptions can be highly damaging.
O’Keefe appeared willing to plead to entry under false pretenses while contesting the “intent to commit a felony.” The difference is considerable. Entry under false pretenses alone presents a maximum sentence of 6 months. Here is the language of Section 1036:
§ 1036. Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport
How Current is This?
(a) Whoever, by any fraud or false pretense, enters or attempts to enter—
(1) any real property belonging in whole or in part to, or leased by, the United States;
(2) any vessel or aircraft belonging in whole or in part to, or leased by, the United States;
(3) any secure or restricted area of any seaport, designated as secure in an approved security plan, as required under section 70103 of title 46, United States Code, and the rules and regulations promulgated under that section; or
(4) any secure area of any airport,
shall be punished as provided in subsection (b) of this section.
(b) The punishment for an offense under subsection (a) of this section is—
(1) a fine under this title or imprisonment for not more than 10 years, or both, if the offense is committed with the intent to commit a felony; or
(2) a fine under this title or imprisonment for not more than 6 months, or both, in any other case.
Of course, if he succeeded in defeating the felony component, he could be convicted and then sentenced to the full six months in the case. This also does not include any collateral charges like 18 U.S.C. 1001 for false statements to federal agents or other possible efforts to expand the counts by the prosecution.
Absent surveillance charges, the felony would be Section 1362;
Whoever … willfully or maliciously interferes in any way with the working or use of any [radio, telegraph, telephone or cable, line, station, or system, or other means of communication, operated or controlled by the United States], or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than ten years, or both.
Section 2 of that law expressed includes:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
He appears intent in claiming that he was not going to interfere with the system, but only observe it. Even under this claim, the government could argue that any effort to test the system could cause interference. Moreover, the government could argue that O’Keefe’s team was interfering with the system by telling the staff that there was a problem that required work to be done. The law refers to any interference (willfully or maliciously) “in any way.”
For a jury, they are likely to be left with the same confusion of why O’Keefe thought this would prove anything of substance to show that the phone were working at that time. Yet, he appears to have thought that the operation was so important that he mentioned it to a conservative group as something they should be looking for in the coming days.
O’Keefe now says “[o]n reflection, I could have used a different approach.” Hmm, “I could have used a different approach” rather than dress men up as telephone repair men and try to secretly record events in a senatorial office. O’Keefe has always showed a surprising lack of concern over the legality of his actions as in the ACORN controversy. Maryland is a two-party consent state and O’Keefe showed no concern over whether he was engaging in unlawful surveillance.
O’Keefe is defining himself as an “investigative journalist” in operation and obviously effort to use constitutional claims to deter prosecution in the case. Such claims tend to undermine efforts of legitimate journalists who need these protections to conduct apolitical, substantive investigations. Presumably, he would also have to argue that Joseph Basel, 24, Robert Flanagan, 24, and Stan Dai, 24, were also journalists. For commentary on this aspects, click here and here and here.
Landrieu’s office released a statement saying that the evidence clearly shows the men were “attempting to manipulate the phone in her office.”
The biggest problem for O’Keefe may be Basel, Flanagan or Dai becoming cooperating witnesses. If any of them are willing to testify that they intended to shut off the phones (even in testing them) or interfere with their operation, O’Keefe would be in considerable jeopardy. He is only magnifying those risks by continuing to speak publicly on the charges.
Below is his statement:
The government has now confirmed what has always been clear: No one tried to wiretap or bug Senator Landrieu’s office. Nor did we try to cut or shut down her phone lines. Reports to this effect over the past 48 hours are inaccurate and false.
As an investigative journalist, my goal is to expose corruption and lack of concern for citizens by government and other institutions, as I did last year when our investigations revealed the massive corruption and fraud perpetrated by ACORN. For decades, investigative journalists have used a variety of tactics to try to dig out and reveal the truth.
I learned from a number of sources that many of Senator Landrieu’s constituents were having trouble getting through to her office to tell her that they didn’t want her taking millions of federal dollars in exchange for her vote on the healthcare bill. When asked about this, Senator Landrieu’s explanation was that, “Our lines have been jammed for weeks.” I decided to investigate why a representative of the people would be out of touch with her constituents for “weeks” because her phones were broken. In investigating this matter, we decided to visit Senator Landrieu’s district office – the people’s office – to ask the staff if their phones were working.
On reflection, I could have used a different approach to this investigation, particularly given the sensitivities that people understandably have about security in a federal building. The sole intent of our investigation was to determine whether or not Senator Landrieu was purposely trying to avoid constituents who were calling to register their views to her as their Senator. We video taped the entire visit, the government has those tapes, and I’m eager for them to be released because they refute the false claims being repeated by much of the mainstream media.
It has been amazing to witness the journalistic malpractice committed by many of the organizations covering this story. MSNBC falsely claimed that I violated a non-existent “gag order.” The Associated Press incorrectly reported that I “broke in” to an office which is open to the public. The Washington Post has now had to print corrections in two stories on me. And these are just a few examples of inaccurate and false reporting. The public will judge whether reporters who can’t get their facts straight have the credibility to question my integrity as a journalist.
For the full story, click here.