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.
lottakatz said “I’m with you on this one ThirtyPercenter. Who was it on this blog that was within the last day or two was still towing the ACORN is guilty even in the face of overwhelming evidence they were not? I forget.”
Who was it? I’m interested because I haven’t seen evidence exonerating ACORN? All I have seen is a possible claim that O’Keefe violated Maryland Law by recording a conversation without the permission of both parties. If that’s the law in Maryland, he should be charged.
“But the intent is obvious. It was to do “something” to or with the phone system.”
Could the intent be just to view the system? What if they thought the “system” was in the Senator’s office, but not really being phone technicians, they worded their question wrong and then didn’t know how to get out of it?
ThirtyPercenter: “I suppose had this been Cindy Sheehan, attempting to gain access to Michele Bachman’s telephone closet by posing as a telephone repairperson, you’d be here defending her, right? … Or if it were a 43 year old man pretending to be a janitor to gain access to your daughters locker room at the local elementary school, you’d be here just as boldly proclaiming how we can’t prejudge his intentions, right? I mean…how can we determine intent…right?”
—I’m with you on this one ThirtyPercenter. Who was it on this blog that was within the last day or two was still towing the ACORN is guilty even in the face of overwhelming evidence they were not? I forget.
ThirtyPercenter,
You win. I give up. I’m beginning to wonder if you ever take a breath. If we ever have a contest to see who can keep stating pretty much the same thing over and over again, you would win.
As to your Cindy Sheehan scenario. I probably would not defend her. She doesn’t have a history of doing investigative reporting. If she did, I’d like to think that I would, I hope that I would give her the benefit of doubt, but I couldn’t say for sure. That’s the problem with an answer of “I don’t know”. Somebody will always state that they know how you’ll react, when the truth is, they don’t know themselves until it happens.
I am anxious to see more about who was bankrolling and supporting these guys from behind the scenes as well as in front.
Fox News seemed to have a lot to do with this crew.
Also their assistant managers reaction seemed to indicate an remarkable amount of dismay and concern on the air when he announced the incident.
Possibly even a little alarm.
When someone dresses up to disguise himself as a telephone repairman in order to gain access to the telecommunications closet his intentions are evident. Particularly someone who is known for covertly spying on people as Mister Okeefe and crew are.
To what degree, with what techniques and to what effect is moot with regards to the intent to deceive to gain access to a telecommunications system. How the law slices and serves it up is up to them.
But the intent is obvious. It was to do “something” to or with the phone system.
Break it…..use it to impersonate a member of the Senators staff to misrepresent her office and make it look bad,…use it to trick the Senator into disclosing information by making her think they were on an incoming line, ..or wiretap it, or just gather intelligence on it so they could get some equipment to access it with later. Remember circuit ID’s are usually written on the HiCap somewhere. Usually the Mux or nearby. Lots of information can be gathered about a location you plan on hacking into or illegally access later simply by visiting the location for a brief site survey. Remember the movie Sneakers? Remember how they spent most of their time gathering information prior to the actual breach? So whatever his purpose we know it involved the phone systems, and accessing, damaging or using them in some way in order to discredit Democratic a US Senator and her staff, in order to promote the Republican party.
So the intent to deceive and gain access is apparent based on the information we have.
I have noticed there has really been a lot of silence on this issue from the msm They have dipped and dabbed at it. I wonder if it would be as silent if say o’keefes name was,abdul ali or kareem johnson.
Or if it were a 43 year old man pretending to be a janitor to gain access to your daughters locker room at the local elementary school, you’d be here just as boldly proclaiming how we can’t prejudge his intentions, right?
I mean…how can we determine intent…right?
I suppose had this been Cindy Sheehan, attempting to gain access to Michele Bachman’s telephone closet by posing as a telephone repairperson, you’d be here defending her, right?
All I’ve been doing is demonstrating the capabilities access would provide. Which method, or what exactly he wanted to do to the system is moot.
You can’t do anything to someone else’s telephone system unless you’re a telephone repairman.
And you can’t pretend to be a telephone repairman to gain access to someones telephone system. Doing so demonstrates intent.
At least based on the information we have thus far.
“Many wiring closets have a POTS line sitting around. Especially in bigger bldgs. And in a pinch just remove the handset you’ll find in the elevator.”
Did the telecom closet that the two who were posing as telephone repairmen have a POTS line just lying around? Did either of those two have the handset from the elevator in their possession? Were any of the Klingons?”
well I can’t speak for the Klingon’s… but….I’m fairly confident there would be a handset in the elevator that he rode up on. Whether he took it or not is moot. Whether he needed it not is moot.
What matters is what was his intent.
And its apparent that his intent was to tamper in some manner with the phone system in some way via deception.
eniobob,
How many interviews has Blago given since he was arrested? There’s a good guy to look at as an attorney’s worst nightmare. :>)
I have a problem with suggestions that someone remain silent while the media crucifies them. I wouldn’t remain silent, and I don’t think most innocent people would remain silent.
Guilty people need to remain silent. Innocent people who are falsely accused, who remain silent, permit a corrupt prosecutor to get away with anything they want. You need only look at the numerous Turley articles about corrupt prosecutors to see that it is a real problem that does exist.
ThirtyPercenter,
“Many wiring closets have a POTS line sitting around. Especially in bigger bldgs. And in a pinch just remove the handset you’ll find in the elevator.”
Did the telecom closet that the two who were posing as telephone repairmen have a POTS line just lying around? Did either of those two have the handset from the elevator in their possession? Were any of the Klingons?
” What has he said that would hurt his attorneys ability to defend him?”
Stay tuned,trust me.
For the third time I am going to say these guys are not hardend criminals,and probably the only reason they have come in contact with breaking the law may have been a parking ticket,if that.
Example of defense attorneys worst nightmare if true.
“Fox News is doing its part, trumpeting news of an exclusive O’Keefe interview with Hannity coming next week”
“But where did the phone come from? Did he have any equipment with him to perform that function?” – Duh
Many wiring closets have a POTS line sitting around. Especially in bigger bldgs. And in a pinch just remove the handset you’ll find in the elevator.
This isn’t rocket science.
And identifying a TS 21 as the standard.
The point is to confuse until you agree with them on an issue.
see, I agree. Hitler and his people did it well. Lee Atwater did it good, Karl Rove as well. Now we can add AY’s name. Agree?
Which was made evident by your identifying a TS30 as a digital buttset.
“Rudimentary? 15 years as a network administrator, and you want to call it rudimentary?” -Duh
A network administrator can be someone who knows how to reset the passwords on the Domino server.
It doesn’t imply any particular skills in telecom engineering.