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.
Blouise,
I take it you didn’t get a chance to read the Federal Prosecutors analysis. Eniobob provided it earlier.
http://patterico.com/2010/01/28/a-federal-prosecutor-explains-the-statutes-relevant-to-the-james-okeefe-case/
ThirtyPercenter:
Excellent explanations of technical aspects … too bad those young men didn’t have someone like yourself advising them for then, perhaps, they might have understood exactly what kind of trouble they could be in … if caught.
But then most people don’t think they’ll get caught and thus dismiss good advice. Which often leads to fathers of stupid young men yelling, “What in the hell were you thinking?”
Scamming ones way through an Acorn interview and scamming ones way into a Federal government’s telephone wiring closet are not one and the same thing. As Mr. O’Keefe, himself, has stated: “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.”
Oh well, the FBI is now the entity doing the investigating and I’m certain their approach will be causing a great deal of “reflection”, even “recollection”, during interrogations that will be recorded by equipment far more sophisticated than a cell phone.
“We all know if this were a liberal caught pretending to be a telephone repairman in a republicans office, you would not be here defending him.
We know this.”
Who’s the “we” you keep referring to? You got a mouse in your pocket? I don’t know what I would be doing in a different situation. If you “know” (excuse me; if “we” know) something I don’t, the “we” must be your and Carnac the Magnificent.
“Just like we know that these yo yo’s were there pretending to be telephone repairmen in order to do something with or to the phone system. At least based on the information provided thus far.”
Then “we” shouldn’t have any problem proving what “we” know. The “we” knows a whole lot more than the FBI agent who filed the afidavit, because an affidavit filed by someone who “know” what you all know would have been able to identify the felony in his affidavit. He didn’t. I guess that means the FBI agent is not a member of the “we”.
“We know this because some things in life are obvious to everyone except those with an axe to grind.”
And some things that can’t be supported by the evidence are considered to be “known” by those with an axe to grind.
“You really need to ask that Duh?
Gee, I don’t know, how about video taping the reaction of the people when they do something to or with the phones?”
ROTFLMFAO. OMFG :>) Thanks ThirtyPercenter. That was one of the best laughs I have had in a while. LOL
And the purpose of having video of the reaction of the staff when they do something to or with the phones is???? Was O’Keefe planning to send them to Ashton Kutcher to use on the next episode of Punk’d?
I’m still laughing.
What good would the video of the staff reacting to a phone anomaly be? Will it just be look at how stupid the Senator’s staff looks when their phones don’t ring? Or was the plan to do something realy mean, and have all the lines ring at once? LOL
We all know if this were a liberal caught pretending to be a telephone repairman in a republicans office, you would not be here defending him.
We know this.
Just like we know that these yo yo’s were there pretending to be telephone repairmen in order to do something with or to the phone system. At least based on the information provided thus far.
We know this because some things in life are obvious to everyone except those with an axe to grind.
Duh 1, January 30, 2010 at 9:43 pm
“ThirtyPercenter,
You win. I give up.”
So by “giving up” you meant you were giving up attempting to offer any reasonable responses and instead were just going to defend the indefensible all night by saying “he wasn’t dooin nuttin”?
You really need to ask that Duh?
Gee, I don’t know, how about video taping the reaction of the people when they do something to or with the phones?
“uh,,,duh…if they have someone secretly videotaping the event then that further corroborates their intent.”
How does someone videotaping in the waiting area of the Senator’s Office get tied to an intent to tap/disrupt the Senator’s phones from the telecom closet? What could he have been videotaping that would assist the guys in the telecom closet?
Mart,
I only cited FOX because I knew they would be the network you were least likely to trust. Knowing that I also presumed that you would have ready knowledge of the fact that they would edit video to promote the version of the story they wanted to represent. I acknowledge that they do exactly that. What I didn’t expect is that you wouldn’t acknowledge that it happens at all the MSM sources. I has become commonly accepted. They all present a biased view. Most people are just more forgiving when the bias is inline with their political, socioeconomic, or religious beliefs.
Take a look at this article about MSNBC, and how they edit video to support their claims of racism?
http://www.mediaite.com/tv/busted-msnbc-caught-dishonestly-editing-town-hall-gun-footage/
“Do those same people “usually” have someone waiting in the Senator’s Office recording video?” -Duh
uh,,,duh…if they have someone secretly videotaping the event then that further corroborates their intent.
Before I say adios,I’ll leave with this off/on topic:
January 29, 2010, 7:09 PM ET Republican Leaders Forming New Political Group.
“By Susan Davis
At least half a dozen leaders of the Republican Party have joined forces to create a new political group with the goal of organizing grass-roots support and raising funds ahead of the 2010 midterm elections, according to people familiar with the effort.
The organizational details of the group, expected to be called the American Action Network, are still being worked out, but it is expected to contain both a 501(c)3 and a 501(c)4 component. In simpler terms, a 501(c)3 can advocate on policy matters while a 501(c)4 is an election arm.
Republican leaders expected to be affiliated with the group include former Minnesota Sen. Norm Coleman, former Florida Gov. Jeb Bush, Mississippi Gov. Haley Barbour, former Bush adviser *Karl Rove,* Republican strategist Ed Gillespie, and Republican donor Fred Malek.
A House leadership aide told Washington Wire today that Rob Collins, a political operative and senior aide to House Minority Whip Eric Cantor of Virginia, is leaving Capitol Hill to be the executive director of the 501(c)4”
Anyone who edits video out of context and presents it as news is wrong and should be publicly shamed for misleading the public. Not surprised that the network that “pimped” the Acorn story and then cried that the MSM had to stop ignoring it – Fox – is the network you cite as one having investigative journalists. From what I have seen on websites, “The Daily Show”, or MSNBC when they run a tape of Joe the politician on C-Span then show the tape as it appeared on Fox – Fox is the one network most likely to fudge what Joe said. Of course in the good ‘ol USA, that does not get you publicly shamed, it gets you rated the most trusted propaganda, er news network on air.
“Usually people dressing up as telephone repairmen to gain access to a wiring closet are intent on eavesdropping on something in that wiring closet.
And if their intent is just to “view” it, its usually so they can go out and buy the necessary hardware to access that system on their next visit.”
Do those same people “usually” have someone waiting in the Senator’s Office recording video?
Now I get it. They were just casing the joint. Then they could get ahold of Bugsy at make the hit.
[youtube=http://www.youtube.com/watch?v=a-FbktgqCqY&hl=en_US&fs=1&]
Mart,
Thanks for providing the link. I will review it and get back to you. So far, I’ve only seen some of the videos presented by O’Keefe. I haven’t read the transcripts, and I haven’t read all of the text at the link you provided.
Editing video is not unusual. The MSM does it all the time. They rarely provide the transcript of the entire video, and they rarely make the entire video available to the public. Are they considered to be investigative journalists? Even the ones on FOX?
“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?” – Duh
Tell you what Duh.
You go out and see if you can get Okeefe and crew to let you defend them at their trial.
Then tell the judge what you just told me.
“Could the intent be just to view the system?” – Duh
“view” it to what end? For what purpose?
They just got up one morning and decided they’d like to view a US Senators telephone system?
Usually people dressing up as telephone repairmen to gain access to a wiring closet are intent on eavesdropping on something in that wiring closet.
And if their intent is just to “view” it, its usually so they can go out and buy the necessary hardware to access that system on their next visit.
All things being equal the most obvious answer tends to be the correct one.
Duh said: “She doesn’t have a history of doing investigative reporting.”
Dear Duh, Lying is not reporting. It is propaganda.
“I’m beginning to wonder if you ever take a breath” -Duh
Given that you post much more often than I do as a quick peruse of the comments will demonstrate, what does that say about your “breath”?
“You win. I give up.” -Duh
Observing the obvious hardly constitutes winning anything.
Apparently it does to you.
Dear Duh, My problem with O’Keefe is calling him an undercover journalist. An undercover journalist does not edit the tape to show him waltzing down the street in a clownish pimp outfit when he entered the Acorn office as a well dressed boyfriend trying to protect his whore girlfriend. A journalist does not edit the tape to make it sound like Acorn is telling them to hide the money from the IRS (they tell them that all income must be reported to the IRS) when they were telling her to hide the money from the pimp. A journalist does not ignore those Acorn sites that called the cops. A journalist does not make headlines about the lady that obviously saw through thier spoof and said she murdered her husband when both are still alive. Have any charges been pressed against Acorn due to the video? No. Has the Gov. refunded Acorn. Yes.
O’Keefe edited the tape to make Acorn the evil doers he imagined them to be. Lying is not journalism. He is an undercover propagandist.
http://alturl.com/jb83