Topic category:  Government/Politics

A comment by "rotarymunkey," a commenter at www.michellemalkin.com, illustrates the hope of many that James O'Keefe's shocking Louisiana caper was legal:

"Can one be convicted of 'maliciously interfering' with a phone system which isn’t been answered in the first place?

"I suspect that O’Keefe already has substantial recordings, made on the day of the arrest, which PROVE that the phone system in the office was OFF THE HOOK, or was somehow otherwise blocked from incoming calls. It could be his purpose to INTENTIONALLY get arrested by the Feds in order to be able to PROVE in court that the phones had already been 'maliciously interfered with' by someone on Landrieu’s staff long before he and his crew arrived.

"Since the staff already knew about the phone system, it explains the arrest of the 4 young men in question.

"This my suspicion."

Even if that suspicion is well-founded, what explains the arrest are non-political federal criminal statutes prohibiting entering federal property under false pretenses and interfering with a "means of communication, operated or controlled by the United States." The zeal to expose wrongdoing, real or imagined, does not excuse "interfer[ing] in any way with the working or use of any...line, or system." 18 U.S.C. Section 1362 applies to "means of communication, operated or controlled by the United States, or used or intended to be used for military or civil defense functions of the United States, whether constructed or in process of construction..." Even if the phone system involved had been in the process of construction instead of constructed, interfering with it would be within the scope of the statutory prohibition, so don't expect a pass for O'Keefe and his friends even if the phones at the office had been "OFF THE HOOK."

Breitbart's BigGovernment.com posted an article titled "Lawyer: phone Scheme Meant to Embarrass Senator" (http://biggovernment.com/2010/01/28/lawyer-phone-scheme-meant-to-embarrass-senator/#more-66766).Breitbart's BigGovernment.com has posted an article titled "Lawyer: phone Scheme Meant to Embarrass Senator" (http://biggovernment.com/2010/01/28/lawyer-phone-scheme-meant-to-embarrass-senator/#more-66766).

The article quoted Attorney J. Garrison Jordan as saying, "You're dealing with kids" and "I don't think they through it through" as "far" as trying to disable or wiretap the phones in Senator Landrieu’s office. Garrison claimed that they were merely seeking embarrassing video footage of Landrieu’s staff handling constituent calls.

FBI Special Agent Steven Rayes alleged in an affidavit that "FLANAGAN and BASEL represented to her that they were repair technicians from the telephone company and were there to fix problems with the telephone system," each of them wore "a tool belt" and "FLANAGAN and BASEL told WITNESS 1 that they needed to perform reapir work on the main telephone system and asked for the location of the telephone closet." and told WITNESS 2 "that they were employees of the telephone company and needed access to the telephone closet to perform repair work."

An expressed intention to access that telephone closet under false pretenses is difficult to explain as innocuous, but BigGovernment reported that "Jordan said his client, Robert Flanagan, the 24-year-old son of a federal prosecutor in Louisiana, did not intend to break the law when he went into the office posing as a telephone worker." Assuming that the affidavit allegations are true, however, what did Flanagan, wearing a tool belt, plan to do in the telephone closet? If he planned to block telephone calls in the hope of obtaining embarrassing video of some of Senator Landrieu's staff reacting to that, then it appears that, in the words of the applicable statute, he intended to "willfully... obstruct[], hinder[], or delay[] the transmission of any communication over" a "means of communication, operated or controlled by the United States," even if he was well-intentioned instead of malicious.

Not even a noble end justifies any means to achieve it.

O'Keefe and Andrew Breitbart are not lawyers.

That's fine (and helpful when pleading legal ignorance).

They either think or pretend to think that if well-intentioned "journalists" do something that otherwise would be a crime, like surreptitious recording where it is prohibited, it's not a crime.

That's NOT the law.

Footnote 19 to the majority opinion in Bartnicki v. Vopper, 532 U.S. 514 (2001) : "'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)."

O'Keefe and Breitbart are taking a position that the United States Supreme Court deemed "frivolous."

18 U.S.C. Section 1362 subjects to fine, imprisonment for up to ten years, or both, anyone who "willfully or maliciously injures or destroys any of the works, property, or material of any radio, telegraph, telephone or cable, line, station, or system, or other means of communication, operated or controlled by the United States, or used or intended to be used for military or civil defense functions of the United States, whether constructed or in process of construction, or willfully or maliciously interferes in any way with the working or use of any such line, or system, or willfully or maliciously obstructs, hinders, or delays the transmission of any communication over any such line, or system, or attempts or conspires to do such an act...."

Note that EITHER willfully or maliciously will do under the statute.

http://www.lectlaw.com/def2/w014.htm:

"WILLFULLY - Committed voluntarily and purposely, with the specific intent to do something; voluntarily and intentionally assisting or advising another to do something that the person knows disobeys or disregards the law. A person does not act 'willfully' if the person acts as a result of a good faith misunderstanding of the requirements of the law.

"Intent and motive should not be confused. Motive is what prompts a person to act, while intent refers to the state of mind with which the act is done.

"So, if the acts constituting a crime were committed by someone voluntarily as an intentional violation of a known legal duty, that is, with specific intent to do something the law forbids, then the element of 'willfulness' has been satisfied even though the person may have believed that his conduct was [religiously, politically or morally] required, or that ultimate good would result from such conduct.

"On the other hand, if there's a reasonable doubt as to whether someone acted in good faith, sincerely believing himself to be exempt by the law [e.g. from the withholding of income taxes], then he did not intentionally violate a known legal duty, that is, he did not act 'willfully'."

So it appears that O'Keefe's defense will be that he genuinely believed that what the United States Supreme Court said was "frivolous" was really sound, at least for him.

Also note that neither success nor wiretapping is required for statutory violation. Attempting or conspiring to obstruct, hinder or delay "the transmission of any communication" via "means of communication, operated or controlled by the United States" suffices.

Initially, Breitbart asserted that he had no advance knowledge of the Landrieu sting, disapproved of wiretapping, and refused to speculate until he heard from O'Keefe.

Breitbart (January 26, 2010):

"Let me state clearly for the record: wiretapping is wrong. But until I hear the full story from James O’Keefe, I will not speculate as to what he was doing in Louisiana.

"Regardless of the outcome we will keep the readers of Big Government apprised of this emerging story."

Enter NBC's Pete Williams:

"A law enforcement official says the four men arrested for attempting to tamper with the phones in the New Orleans office of Sen. Mary Landrieu (D) were not trying to intercept or wiretap the calls.

"Instead, the official says, the men, led by conservative videomaker James O'Keefe, wanted to see how her local office staff would respond if the phones were inoperative. They were apparently motivated, the official says, by criticism that when Sen. Landrieu became a big player in the health care debate, people in Louisiana were having a hard time getting through on the phones to register their views.

"That is, the official says, what led the four men to pull this stunt -- to see how the local staffers would react if the phones went out. Would the staff just laugh it off, or would they express great concern that local folks couldn't get through?"

Apparently Breitbart heard from O'Keefe, because he issued this statement on January 27, 2010: "For those in the mainstream media committed to report the false and libelous narrative of 'Watergate Jr.,' 'wiretapping' and 'bugging,' I predict much egg on your J-school grad faces. In your rush to judgment to convict James O’Keefe and his companions, you vengeful political partisans of press forgot to ponder: 'Was Mr. O’Keefe up to one of his patented and obvious clown nose-on hidden camera tricks, trying to make his subjects look foolish?' Blog commenters seem to be quicker on the uptake than six-figured Washington-based pundits these days. And I predict there will be tape to vindicate these four pranksters, too."

Unless Breitbart flip flopped on "speculating" before hearing from O'Keefe, it's clear that O'Keefe's defense will be that he and his three friends were pranksters trying to make the folks in Senator Landrieu's Louisiana office "look foolish" and fully believing that they were acting lawfully because they are good people with good intentions.

Problem: Making others "look foolish" is not a crime, but it IS a crime to willfully obstruct, hinder or delay "the transmission of any communication" via "means of communication, operated or controlled by the United States."

Complication: To date prosecutors in Maryland, California and probably Pennsylvania have been pondering whether to prosecute O'Keefe for surreptitiously recording in violation of state law. After the Landrieu sting and the explanation that O'Keefe believed it was legal to tamper with the phones in Senator Landrieu's Louisiana office in order to make people in that office "look foolish," it is much easier politically to decide to prosecute O'Keefe (and anyone else working with O'Keefe on the "Pimp and Pro" ACORN sting) , especially in California, where there was surreptitious recording in three cities and O'Keefe met with Breitbart to show video from the East Coast and strategize.

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.