WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  November 21, 2009

Topic category:  Government/Politics

Andrew Breitbart's Astonishing "Option" for Attorney General Holder

Was that tactic a stroke of brilliance or an act of stupidity and desperation?

ACORN is a subversive, corrupt, criminal enterprise that has corrupted America's political process and the implementation of ACORN's radical agenda would be devastating to America. Thus, it is unsurprising that some persons have investigated and/or blown the whistle on ACORN.

The undercover operation known as the "Pimp and Pro" ACORN sting was boldly, bravely and brilliantly conducted last summer, but apparently it was not conducted entirely lawfully. As a result, one civil suit has been filed and criminal prosecutions are under consideration on both coasts.

Andrew Breitbart, who admittedly masterminded the release of the videos (the first on September 10 and the last on November 19), is understandably frustrated that ACORN continues to be protected by its political allies despite the release of shocking videotapes of visits to ACORN offices in Baltimore, Washington, D.C., New York, San Bernardino, San Diego, Philadelphia and Los Angeles.

Unfortunately, that frustration may have led to more legal problems for the ACORN exposers. At Breitbart's BigGovernment.com, the Editorial Panel posted an article that described Breitbart's latest tactic in the not-so-quixotic-but-not-yet-successful quest to expose and to eliminate ACORN in the title: "Breitbart to AG Holder: Investigate ACORN or We’ll Release More Tapes Just Before 2010 Election."

Was that tactic a stroke of brilliance or an act of stupidity and desperation?

Columbia Journalism Review, "Well, It May Deserve an Award in Something," by Greg Marx (November 20, 2009): "Memo to Sean Hannity, who is calling for James O’Keefe, Hannah Giles, and Andrew Breitbart to get a 'journalism award”'for their video sting of ACORN: Generally, when in possession of what one believes to be newsworthy information, the journalistic thing to do is get it out to the public—not attempt to blackmail the attorney general."

News Hounds, "Andrew Breitbart Trying To Blackmail The Obama Administration With ACORN And Other Videos" (November 20, 2009): "Merriam-Webster’s online dictionary defines 'blackmail' as 'extortion or coercion by threats especially of public exposure or criminal prosecution.'”

If Breitbart had threatened to hold his breath until he turned blue in the hope of inducing General Holder to order an investigation of ACORN, Breitbart would have had a respiratory problem, but not a legal one, if he followed through on his threat.

If Breitbart had said he would lead a march on Washington to induce General Holder to order an investigation of ACORN, Breitbart would have been within his rights.

But Breitbart threatened to release more videos just before Election Day 2010 unless General Holder orders an investigation of ACORN now and that tactic may have been legally problematic (like surreptitious recording without the consent of all parties in a dozen states).

Will Breitbart be charged with attempting to extort or to blackmail the Attorney General of the United States?

If so, Breitbart will have demonstrated that he can get himself arrested and perhaps get some "mainstream media" attention! (Sadly, as one emailer put it, "the mainstream press (rightly or not) sees ACORN as too small potatoes to be worth much attention, even apart from liberal bias.")

California Penal Code 518 defines extortion to include "the obtaining of an official act of a public officer, induced by a wrongful use of...fear...."

General Holder ordering an investigation would be "an official act of a public officer."

Wrongful use of fear may involve a threat to expose a criminal activity or a threat to reveal a secret.

The threat to disclose something shameful or disreputable about a person can constitute blackmail even if it would not have been illegal to simply make the reputation-damaging information public.

The constitutional right to petition government does not permit extortion or blackmail.

On "Hannity," Breitbart expressed his frustration that the "Pimp and Pro" ACORN story has not resulted in an investigation by either Congress or the United States Justice Department.

Breitbart: "There’s a lot of hypocrisy and the dust has settled for ACORN and at the end of the day they’ve recognized that Eric Holder, the Attorney General, has not initiated an investigation into ACORN after we now have seven tapes. There were five initially that came out, ACORN was defunded by the Senate, was defunded by the House, lost its link to the Census; while all that damage occurred, Congress didn’t come in to investigate them, obviously not the Attorney General’s office, and they’ve now realized let’s get back into business because they realized that the dust settled and they were not being investigated, it was Hannah, James, and me who were being investigated, that’s why we’ve been forced to offer this latest tape."

"[W]e've been forced to offer this latest tape"?

What? That tape was NOT going to be released, but was released because the stars of the sting, Hannah Giles and James O'Keefe, and strategist Breitbart are "being investigated"?

Sean Hannity did not go there.

Instead, Hannity asked, "Are you saying, Andrew, that there are more tapes?"

Breibart replied: "Oh my goodness there are! Not only are there more tapes, it’s not just ACORN. And this message is to Attorney General Holder: I want you to know that we have more tapes, it’s not just ACORN, and we’re going to hold out until the next election cycle, or else if you want to do a clean investigation, we will give you the rest of what we have, we will comply with you, we will give you the documentation we have from countless ACORN whistleblowers who want to come forward but are fearful of this organization and the retribution that they fear that this is a dangerous organization. So if you get into an investigation, we will give you the tapes; if you don’t give us the tapes, we will revisit these tapes come election time."

"[I]f if you don’t give us the tapes, we will revisit these tapes come election time" sounds like a garble and a threat.

Attorney General Holder does not have tapes to give to Breitbart, O'Keefe and Ms. Giles.

Did Breitbart mean to say "investigation" or "immunity" instead of "tapes"!

Hannity did not seek clarification.

Instead, Hannity commented: "This is a blockbuster, what you’re saying here. You guys have more tapes, you’ll release them before the election, that could have a big impact on the election, obviously…"

The "Pimp and Pro" ACORN story is based on deception, which is permissible, and surreptitious recording, which is legal in some states but illegal in others.

The surreptitious recording in Washington, D.C. and New York was legal.

But surreptitious recording at the ACORN offices in Pennsylvania. Maryland and California involved the possibility of both criminal and civil liability.

In Pennsylvania, "a person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or (3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication."

"Oral communication" is defined to include "[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation" but not 'any electronic communication."

In Maryland, "it is unlawful for any reason to: (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or (3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle."

"Oral communication" is defined as "any conversation or words spoken to or by any person in private conversation."

In California, "[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment...."

Wishful thinking notwithstanding, neither professional nor amateur journalists are immune from prosecution for violating criminal laws.

Footnote 19 to the majority opinion in Bartnicki v. Volper states: "Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. 'It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.' Branzburg v. Hayes, 408 U. S. 665, 691 (1972)."

As others did, Breitbart learned that battling ACORN is risky as well as rewarding. Yes, Breitbart opened BigGovernmet.com with a big splash and garnered lots of attention at Fox News as well as badly damaged ACORN. But showing the lovely young Ms. Giles impersonating a prostitute and the criminal sympathies of a number of ACORN employees has not done what needs to be done. Breitbart directed such public attention as he mustered to such things as prostitution, illegal immigration and tax and bank fraud instead of ACORN's political corruption, service as an unofficial arm of the Democrat Party and illicit coordination with the Obama presidential campaign. That strategy has not, and will not, derail the ACORN/Obama political agenda to socialize America, redistribute wealth and income and move the federal judiciary far to the left (ACORN favorite Richard Hamilton was just confirmed as a federal appellate judge and ACORN/SEIU/La Raza favorite Sonia Sotomayor now is sitting on the United States Supreme Court).

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.

Copyright © 2009 by Michael J. Gaynor
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