O’Keefe Goes Public With Defense on Landrieu Controversy

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.

306 thoughts on “O’Keefe Goes Public With Defense on Landrieu Controversy”

  1. AY

    “Did you hear about the Mexican that shot his gun outside of the Texas Capitol?”

    You should probably stick to the religious jokes, dude.

  2. “Then you will join the effort to assure that these folks not only have the right an attorney but to a fair trial to boot.”

    Absoutely! What efforts are you currently undertaking? I want in.

  3. AY

    In the interests of diversity I would request that you include rabbis in all future religious oriented jokes. If they are over 100 words then a minister would be appropriate as well.

    My legal team thanks you in advance.

  4. Wayne,

    Then you will join the effort to assure that these folks not only have the right an attorney but to a fair trial to boot. If Mr. O’Keefe had been charged with an act of Treason or Sedition the writ of habeas corpus has been suspended for these crimes. Do you think that this was fair?

    If they are tried, Mr. O’Keefe and the lot, then you agree that they should have a fair trial. This did happen in New Orleans you do agree? Then it is possible that they could still be tried in a Military Court.

    I am not sure that Bush ever renounced the Military Occupation of New Orleans as required by law to do. If so, they could be tried in the Military Courts. Hmm. Not good.

    After the Civil war I think it was under Marshall Law until 1904 or 1911. Hayes was the President that Officially ended it.

    I believe that a new book is coming out based upon the following.

    The Case of Mumford–The Occupation of New-Orleans.

    http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9401EFDC1338EE3BBC4151DFB4678389679FDE

  5. AY: Do you assume that I am in favor of detainee’s being refused counsel? ‘Cause I’m not.

  6. “Bdaman: there is a direct relationship between the folks that have no ability to detect humor or sarcasm” – Wayne Jarvis

    A better study of a direct relationship would be the one between subtle threats and the humor that they are often gilded with.

  7. “and exactly where was that. Please research this I don’t feel like going over the thread.” – Bdaman

    My apologies. It wasn’t you. It was your altar ego “Duh”.

    My bad.

    “Duh 1, January 31, 2010 at 3:40 pm

    Would you bet your life on it?
    Well, maybe. :>)”

    I still haven’t figured out what this means.

  8. Bdaman 1, February 2, 2010 at 3:37 pm

    All I’m sayin is Letten probably recused himself because he just got a promotion.

    Other people are taking it as he did a good job on okeffe here’s your promotion.

    I am laughing at you too…..Not with you. There is a difference as you point out.

    Bit, but you can bite

    me

    Bdaman 1, February 2, 2010 at 4:03 pm

    New post up at Big G

    “Breitbart said he though the U.S. attorney’s effort was part of a payback scheme against O’Keefe, who posed as a pimp and prostitute with another citizen journalist to enter ACORN offices around the country and get advice on how to apply for federal housing grants for a brothel.

    “It’s tied to the Justice Department. And we’ve been very aggressive in asking (Attorney General) Eric Holder to investigate what’s seen on these ACORN tapes and he’s ignored it,” Breitbart said of the media ploy.”

    FWIW, I don’t think Letten’s recusal has anything to do with Breitbart, his claims, or even O’Keefe. Letten recused himself, not his office, and the first assistant Jan Maselli Mann will take over the prosecution. My guess is Letten’s recusal is related to the fact that one of the suspects is the son of the U.S. Attorney in Shreveport, who is likely a Letten acquaintance and the basis for his recusal.”

    ____________________________________

    Nothing has changed in the cut and pasted posts. So which is your view? The one posted at 3:37 or the one at 4:03. They are inconsistent if they are your words.

  9. New post up at Big G

    “Breitbart said he though the U.S. attorney’s effort was part of a payback scheme against O’Keefe, who posed as a pimp and prostitute with another citizen journalist to enter ACORN offices around the country and get advice on how to apply for federal housing grants for a brothel.

    “It’s tied to the Justice Department. And we’ve been very aggressive in asking (Attorney General) Eric Holder to investigate what’s seen on these ACORN tapes and he’s ignored it,” Breitbart said of the media ploy.”

    FWIW, I don’t think Letten’s recusal has anything to do with Breitbart, his claims, or even O’Keefe. Letten recused himself, not his office, and the first assistant Jan Maselli Mann will take over the prosecution. My guess is Letten’s recusal is related to the fact that one of the suspects is the son of the U.S. Attorney in Shreveport, who is likely a Letten acquaintance and the basis for his recusal.”

    http://biggovernment.com/2010/02/02/the-oobviously-a-media-malfunction/#more-68310

  10. Wayne,

    Did Bush hold a media campaign before he invade Iraq? I think that anytime an Office Buildings Security has been breached you will hear about it. Especially when its a state or Federal Building. Did you hear about the Mexican that shot his gun outside of the Texas Capitol? How about the person that Shot security in Nevada?

    What Attorney did they get? Oh, now that the Detainees have attorneys, when are are they allowed to see them? 28 hours is minimal compared to how many 9 years in confinement? Now that you are out raged about Mr. O’Keefe and his mere 28 hours write your congressman, call the press and tell them how wrong it is for Mr. O’Keefe and the Detainees not to have legal counsel under the 6th Amendment.

    Mr. O’Keefe should be pleased that he was arrested on American soil and his 4th Am is still in check. Now wonder if the CIA has swept him and he had disappeared out of the country what do you think his chances are of seeing an attorney are? Man, we do agree.

    Tell me where you live so I can get you your congress persons telephone number. It is imperative that they be called and tell them how you feel about a persons 4th Amendment rights being abridged as well as his 6th Amendment right to counsel.

  11. AY: that is an interesting tangent but it skirts the real issue. (I could hardly care less whether the USA was appointed by Bush or Obama or Gerald Ford). Did the government hold O’Keefe for over a day without access to an attorney while simultaneously running a media campaign.

    Inquiring minds.

  12. All I’m sayin is Letten probably recused himself because he just got a promotion.

    Other people are taking it as he did a good job on okeffe here’s your promotion.

    I am laughing at you too…..Not with you. There is a difference as you point out.

    Bit, but you can bite

    me

  13. Bdaman,

    I need to watch which one is crossing the river. Will I be bit or will I bite.

    I am laughing at you too…..Not with you. There is a difference as you point out.

  14. Link would not post connected:

    http: //www.prnewswire.com/ news-releases/ attorney-general-holder-appoints-three-new-us-attorneys-to-advisory-committee-83261367.html

  15. Jim Letten was presidentially appointed U.S. Attorney for the Eastern District of Louisiana in 2005 by then-President George W. Bush. He was the court appointed U.S. Attorney from August 2001-2005, and Attorney General appointed from April – August 2001. Letten served as First Assistant U.S. Attorney for the Eastern District of Louisiana (1994-2001), and Assistant U.S. Attorney and Chief of the Organized Crime Strike Force Unit (1990-1994). In 2005, Letten was awarded the 2005 U.S. Attorney General’s Medallion for Distinguished Service recognizing his leadership following the devastation of Hurricane Katrina. Letten serves on the AGAC’s Terrorism and National Security Subcommittee, Violent and Organized Crime Subcommittee and Environmental Issues Working Group.

    Need I say more. He likes his 180K a year job. Oh, but he does have RICO experience. Dang, But I still think that it is the best decision philosophically, ethically and employment wise. He does not have to make the hard decisions he can just sit back and watch.

    FYI, Attorney have a duty to be ethical. Some even use it in practice. Some struggle with the concept as they have a winner take all strategy.

    The bottom line is that he not only is a Bush Appointment but a hold over as well.

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