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.
Why were you calling a TS22 a TS21?
Regardless of what bldg it was its still in Louisiana, not DC.
And its moot since I made it clear my point was not based on whether the system was analog or digital.
Now, how about addressing your errors?
A TS 30 is a digital handset?
“Well, we’re not talking about Washington DC here we’re talking about the Louisiana State House.”
http://www.emporis.com/application/?nav=building&id=135891&lng=3
The Hale Boggs Federal Building is the Louisiana State House?
And by the way, who do you know that uses a TS21?
A TS22 is what you meant to say, right?
“I don’t think that is likely to be correct. I haven’t seen analog used in a government office like that for a long time. It wouldn’t be cost efficient for them to still have an analog system.” -Duh
So you work for the government? I see. Well, we’re not talking about Washington DC here we’re talking about the Louisiana State House.And remember not all digital systems are digital end to end. Analog to digital is the standard. Maybe they were digital. Maybe they were analog. Maybe they were a combination. Either way access to the wiring closet is where a hacker\eavesdropper would want to begin.
eniobob said “This guy seems to be a defense attorneys worse nightmare”
Why? What has he said that would hurt his attorneys ability to defend him?
““As for the digital handset you spoke of, there is no such thing that I’ve ever seen.”
A TS-30 has the capability of detecting a digital line. Whereas, a TS-21 does not. A phone tech with a TS-21 is very unusual today. Again, we don’t even know what the “tool belt” consisted of.” -Duh
Different vendors have different protocols hence there is no digital buttset available that one can go out and use to test digital lines like you would test analog lines. One set for one system would not comprehend the signals from another.
And the TS 30 is not a digital buttset.
Its an analog buttset that has some rudimentary features like enabling it to pull an analog dial tone off a DSL circuit without downing the circuit. Other than clicks to verify circuit integrity there’s pretty much nothing that you can do with a TS30 on a digital line. There are other methods of testing digital circuits depending on whether they are copper or fiber and most testing is done at the CO and on the system interface itself, as most systems come with their own testing utilities. Not sure where you’re googling that information but its misleading you.
I think these guys saw “All the President’s Men” a few too many times.
This guy seems to be a defense attorneys worse nightmare,and this guy IMO is setting himself up to be made an example of.
I know you know what I am saying.
Louisiana Democrats Are Using O’Keefe Arrest As Fundraiser Fodder.
Rather than being called journalists, O’Keefe and others are being called Republican political operatives in a recent fund raising letter by the Louisiana Democrat Party.
From the letter:
By now I’m sure you have heard that four Republican political operatives were arrested earlier this week attempting to tamper with the phone system in Senator Mary Landrieu’s New Orleans’ office.
I guess I shouldn’t be surprised that the Republicans have to resort to breaking the law to push their agenda of doing the bidding for special interests, standing up for Wall Street fat cats and abandoning the middle class. But I have to tell you – I am amazed that they would sink this low.
The only way to combat these Republican dirty tricks is with constant viligance and by aggressively exposing their lies and criminal behavior. That’s why we need your help.
Please contribute $25, $50, or $150 right now to help the Louisiana Democratic Party fight these Republican dirty tricks.
It’s not just the Obama supporters at ACORN who are using the arrests this week for political advantage.
It is interesting that James O’Keefe, who is famous for outing the mass corruption in the leftist group ACORN, is automatically branded a GOP operative. Does that mean that only GOP operatives point out corruption or that pointing out corruption in a leftist organization makes you a GOP operative?
eniobob, Thanks for the link.
From the Federal Prosecutor’s analysis;
“I’m going to put up another post later that examines some of the “legal eagle” reporting that has taken place over the last couple days, including Jonathan Turley’s initial comments on Olbermann on Tuesday, as well as David Shuster’s reporting yesterday from New Orleans.”
ThirtyPercenter,
The key word is “allegedly”. We would need to read the witness statement. Does the affidavit contain a quote of exactly what the two representing themselves as technicians said? The answer is no. The affidavit only presents the “Cliff’s Notes” version of the events.
“As for the digital handset you spoke of, there is no such thing that I’ve ever seen.”
A TS-30 has the capability of detecting a digital line. Whereas, a TS-21 does not. A phone tech with a TS-21 is very unusual today. Again, we don’t even know what the “tool belt” consisted of.
You’re correct about the digital systems being proprietary.
Did these guys have any type of device capable of being used as a “bug”? None was identified in the affidavit.
“Its important to remember that this is a govt office and there is a good chance analog lines are still in place.”
I don’t think that is likely to be correct. I haven’t seen analog used in a government office like that for a long time. It wouldn’t be cost efficient for them to still have an analog system.
“either way, accessing the phone closet to see if the phones were working, means attempting to tap the system.”
Talk about jumping to a conclusion without enough evidence to support it!! You don’t even know what equipment they had in their possession, how can you declare an attempt to tap the system? How about them going to the phone closet so that they could then go to the Senator’s Office and claim that they just looked in the phone closet, and there doesn’t seem o be any problems there?
A man seen trying to break into a vehicle may be seen as an attempt to steal the vehicle. That is, until you find out that a baby was locked inside. Let’s leave jumping to conclusions without sufficient information to the fools in the MSM. They need to sell stories.
/28/2010
A Federal Prosecutor Explains The Statutes Relevant to the James O’Keefe Case
Filed under: General — Patterico @ 8:52 pm
[Guest post by Shipwreckedcrew]
[Note from Patterico: I asked federal prosecutor Shipwreckedcrew, formerly known as WLS, to contribute a piece that analyzes the federal statutes applicable to James O’Keefe’s criminal case.
His lengthy analysis is below the fold. For those with short attention spans, here’s the takeaway: the complaint alleges only a trespass charge. If O’Keefe et al. were trying to disable the Senator’s phone system, they’re in trouble. But maybe they only meant to show something about the current state of the phone system — and intended to return later with that video to press the Senator or her staff on their claim that constituents were unable to get through to her because her phone system was not functioning properly. In that case, we’re looking at no indictment or a misdemeanor.
Thanks to Shipwreckedcrew for this analysis. Now for the full details.
http://patterico.com/2010/01/28/a-federal-prosecutor-explains-the-statutes-relevant-to-the-james-okeefe-case/
“gues what I am really trying to say, is that we just don’t have enough information. The MSM didn’t help. Being pretty partisan themselves, the MSM has done a pretty good job of declaring what most of us already know. That is, innocent until proven guilty may exist in a court of law (and that’s a maybe), but it is exactly the opposite when partisan politics are involved” – Duh
My assumptions aren’t made on being partisan. They’re made based on the knowledge that there was no plausible excuse for attempting to garner access to the telephone closet.
As for the digital handset you spoke of, there is no such thing that I’ve ever seen. Digital systems are proprietary and I know of know universal buttset made for them.
Its important to remember that this is a govt office and there is a good chance analog lines are still in place. They might have a digital system but either way, accessing the phone closet to see if the phones were working, means attempting to tap the system. There’s no other way to do it.
Whether or not they had the capability to pull it off is one thing. The intent however to either tap the system or down it was clearly there based solely on the attempt to access the wiring closet under the guise of telephone repairmen.
“It is alleged that they wanted to get to the telecom closet, but it is also possible that they said something like “We are here to investigate trouble with your phone system.” – Duh
If you read the story again you’ll see that they were challenged while attempting to access the wiring closet by a GSA employee.
“Duh 1, January 30, 2010 at 3:51 pm
ThirtyPercenter,
Thanks for taking the time to think about it. I thought you might arrive at the same conclusion that I did.”
Thanks for implying that I hadn’t thought about it earlier.
I did.
And nothing you said explains why they attempted to access the wiring closet.
ThirtyPercenter,
Thanks for taking the time to think about it. I thought you might arrive at the same conclusion that I did.
We need more facts, and we need to recognize that only allegations have been presented.
Not only would they need a butt set, they would likely need a digital butt set. While butt sets are pretty easy to come by (I’ve got about 5 sitting in my basement), digital butt sets aren’t so plentiful. An analog set would work great to make them look legitimate, but it wouldn’t be of much use beyond that. Remember, we don’t even know if the had either.
As far as we know, the “tool belt” could have consisted of am electricians belt with a hammer, screwdriver, pliers, etc. I’m sure the arresting officer(s) took pictures of the tool belts. We might look at them and ask what idiot was fooled by this?
It is alleged that they wanted to get to the telecom closet, but it is also possible that they said something like “We are here to investigate trouble with your phone system. Has anybody doing some work in the telecom closet?” And that alone made somebody allege that they wanted access to the closet.
I gues what I am really trying to say, is that we just don’t have enough information. The MSM didn’t help. Being pretty partisan themselves, the MSM has done a pretty good job of declaring what most of us already know. That is, innocent until proven guilty may exist in a court of law (and that’s a maybe), but it is exactly the opposite when partisan politics are involved.
I know some people have criticized “absolutes” but the fact is some things in life are absolute. In base 10 mathematics for example 2+2=4. It will always equal 4. It doesn’t equal 4 because we say it does. And the number 4 is merely a word representing a fixed value. We can call it whatever we want but the value is still the same.
And there is no credible reason for their attempting to garner access to the wiring closet that doesn’t include tampering or eavesdropping.
If as Okeefe is claiming now they “just wanted to see if the phones were working” then the only way to do that from the wiring closet involves tapping the phones with a buttset or logging into the switching system. Both which are felonies unless you are authorized to do so.
Okeefe’s claims that he “just wanted to see if the phones were working” is untenable and does not correlate with their attempt to garner access to the telephone closet. If you wanted to see if the phones were working you would do that from the Senators office. There would be no way to determine that from the wiring closet without connecting a buttset to the pairs in question or logging into the telephone switching system assuming you knew how.
Both of which would constitute tapping and or hacking. If you hook a buttset up to twisted pair that you doesn’t belong to you and you don’t work for the phone company, then you’re eavesdropping.
Period.
And if you log onto a computer terminal to gain access to the telephone switching system then you’re hacking, which is also a federal offense and a felony.
So the only way for them to tell the phones were working by entering the wiring closet would also make them guilty of the crimes they are claiming to be innocent of.
There’s just no wriggle room there.
It was the attempt to access the phone closet that discredits what they are saying now.
Bdaman:
“This is all a publicity stunt. I haven’t quite figured it out yet but I think it’s all to single out the media for bad reporting. They are requesting corrections from alot of sources.”
I think it is more than a publicity stunt. Andrew Brietbart is not a stupid man. He has done this on purpose with intent. It appears the intent is beginning to come to light.
This is beginning to be interesting and I will enjoy seeing what their end game is going to be. Brietbart gave some of it away in the video that eniobob posted on one of the other O’Keefe threads.
You hold to your ideology and avoid the truth at your own peril. O’Keefe and Brietbart are showing the total partisanship of the main stream media and their total lack of effort to investigate a story. They have an institutional bias against liberty and free markets and will eventually be hoisted on their own petard.