Topic category:  Government/Politics

Truth must trump spin by both ACORN and Obama advocates and critics for the subversive nature of ACORN and its sinister relationship with President Obama to become generally appreciated by the American people. That is essential to stop the implementation of the radical political agenda of ACORN. Showing the contemptible criminal tendencies of some ACORN employees was nice, but obviously did not suffice. It will be small solace for ACORN critics if ACORN is de-funded and dissolved, but its radical political agenda is implemented. That would be winning a battle, but losing the war.

There's been plenty of spin (and sin) as both sides fight to win and ignore "the rest of the story."

In October 2008 The New York Times killed an Obama/ACORN expose, fearing it would be an election "game changer," and ABC and CNN did not want to go there either.

Beginning September 10, 2009, the "Pimp and Pro" ACORN story has been extensively reported by Fox News and Andrew Breitbart's BigGovernment.com, but not by the alphabet networks and the liberal media establishment.

On December 22, 2009, the Congressional Research Service issued a report on ACORN to the House Judiciary Committee (http://judiciary.house.gov/hearings/pdf/CRS-ACORN091222.pdf) and the reporting on it, like the reporting on the "Pimp and Pro" ACORN story, has been fundamentally flawed.

Dana Loesch, "It's A Wrap: The Most Underreported Stories of 2009," at www.biggovernment.com (http://biggovernment.com/2010/01/01/the-most-underreported-stories-of-2009/#more-54262):

"Only in America can you offer to help smuggle in underage sex workers as part of your description as a taxpayer-funded 'community organizer' and still get federal dollars after the scandal breaks. James O’Keefe and Hannah Giles exposed ACORN for what it truly is: a malignancy that consumes the life out of depressed areas that it never, ever improves, ever, all in the name of making residents dependent upon the teat of government welfare so as to exploit them for votes later 'neighborhood organizing.'

"Michael Walsh explains the rep[e]rcussions of the dynamic duo’s work: 'The Senate voted 83-7 in favor of de-funding the controversial group. The House voted 345-75 to cut ACORN’s funding, and more than 20 states have demanded either a full investigation of ACORN or that they lose their funding. The IRS also ended up cutting their connections to the group.'

"O’Keefe and Giles made a mockery of the media who retaliated by refusing to cover the story, further hammering the last nail into their own coffin.

"Despite all of this, Big Government wrote how after this egregious corruption, Democrats like Roland Burris still found a way to push for continued ACORN funding by slipping a provision requiring such in Harry Reid’s senate fauxcare bill."

The young conservative Ms. Loesch's enthusiasm for the "Pimp and Pro" ACORN story and frustration with and contempt for the liberal media establishment's failure to report it properly is fully justified, but not the full story. The ugly reality is that the liberal media establishment mostly refused to cover the story (duly noted), the temporary Congressional defunding of ACORN was preliminarily enjoined by a federal judge on constitutional grounds (not noted), Senator Roland Burris, Democrat of Illinois, is now "the Senator from ACORN" (essentially noted), Senator Burris's predecessor as "the Senator from ACORN" is President Obama (not noted), ACORN is "a malignancy that consumes the life out of depressed areas that it never, ever improves, ever, all in the name of making residents dependent upon the teat of government welfare so as to exploit them for votes later 'neighborhood organizing" (emphatically noted), and ACORN is a subversive organization with a long relationship with President Obama that illicitly coordinated with the Obama presidential campaign to make him President Obama (astonishingly, NOT noted).

Sensational as the "Pimp and Pro" ACORN story was, sexy as 20-year old Hannah Giles in her scantily-clad prostitute persona was and sly as videographer 25-year old James O'Keefe was, the inherent limitations of the sting and the stingers kept the story from blocking the implementation of ACORN's radical political agenda (as distinguished from ACORN's own funding and wish to participate in the next census).

Truth be told, the videos did not include any members of ACORN's control group or critical documents. It showed only some ACORN/ACORN Housing employees assigned to deal with walk-ins behaving outrageously and, unfortunately involved illegal surreptitious recording at most of the ACORN offices visited. That recording is lawful in the three jurisdictions in which ACORN has its national offices (New York, Washington, D.C. and Louisiana), but it is felonious in Pennsylvania, Maryland and California.

That surreptitious videotaping in states that outlaw it helped the liberal media establishment to ignore or to underreport the story and shift attention to the method used by "the dynamic duo" instead of their important message about ACORN's true nature. As a result, BigGovernment had a big debut and Fox News boosted its rating, while the radical ACORN agenda moved forward, because the political dynamite feared by Obama and ACORN--the Obama/ACORN connection--was NOT involved in the sting and "the dynamic duo" were outsiders and thus not in a position to testify based on personal knowledge to what happened inside ACORN.

Unsurprisingly, "The Caucus" (the politics and government blog of The New York Times grosslly overstated the significance of the Congressional Research Service Report on ACORN.

Janie Lorber, "Report Finds Acorn Broke No Laws" (December 23, 2009) (http://thecaucus.blogs.nytimes.com/2009/12/23/acorn-broke-no-laws/):

"The controversial community organizing group Acorn has not broken any laws in the last five years, according to a Congr[e]ssional Research Service report released Tuesday evening."

That's NOT what the report said.

The report merely said that "[a] search of reports of federal agency inspectors general did not identify instances in which ACORN violated the terms of federal funding in the last five years."

Lorber:

"The report, requested by Representative John Conyers, Democrat of Michigan, said that federal agencies, mainly the Departments of Justice and Housing and Urban Development, have awarded money to the group 48 times since 2005. But, in none of those instances did Acorn violate the terms of their funding, the report said.

Since the 2008 elections, the group, which works primarily to expand voter registration and affordable housing, has become a key Republican target. A series of scandals brought to light by conservative activists led to multiple Congressional hearings and repeated attempts to deny it taxpayer funding.

"Acorn has been the subject of scores of investigations—a total of 46 inquiries by federal, state, and local agencies, including the FBI and the Treasury Department, and five by Congress as of October 2009, according to the report.

"The report found no evidence that voters attempting to cast ballots at the polls had been improperly registered by Acorn, a chief Republican accusation.

"The report also said that a sting-style effort to publicize the group’s allegedly illegal activities, may have broken state laws. Two conservative activists set off a firestorm in September when they posed as a pimp and a prostitute seeking financial advice and secretly videotaped Acorn employees offering advice on how the couple could hide their illicit activities and avoid paying taxes."

Nothing about The New York Times itself killing an Obama/ACORN expose before Election Day 2008, focus on the surreptitious recording and video showing ACORN people facilitating prostitution, child prostitution, illegal immigration, bank fraud and tax fraud transformed into "advice on how the couple could hide their illicit activities and avoid paying taxes." (Note: tax evasion, not tax avoidance, is illegal.)

Lorber added:

"Also on Tuesday, a federal court in Brooklyn, New York, rejected the administration’s request to reconsider its ruling that a House resolution barring the group from receiving federal funding was unconstitutional. Earlier this month a judge ruled that the law constituted a 'bill of attainder,' legislation intended to punish specific people or groups.

"In November the Justice Department also concluded that the Obama administration can legally pay the group."

The gist of Lorber's article is that ACORN is really the victim it pretends to be, not a subversive, corrupt, criminal enterprise that has functioned illegally for years as an unofficial arm of the Democrat Party.

In sharp contrast, Capital Research Center's Matthew Vadum, in "CRS Report On ACORN Is Nonsense" (December 27, 2009) (http://www.capitalresearch.org/blog/2009/12/27/crs-report-on-acorn-is-nonsense/), wittingly, but totally, rejected the Congressional Research Service report.

Vadum:

"Apparently Congressional Research Service employees are as good at research as ACORN employees are at registering voters.

"Not surprisingly, the new Congressional Research Service report on ACORN continues the Democrats’ coverup of President Obama’s favorite advocacy group.

"I’m on vacation so I haven’t had a chance to go through the CRS report thoroughly but from what I’ve read so far the report commissioned by House Judiciary Committee chairman John Conyers (D-Mich.) and House Financial Services Committee chairman Barney Frank (D-Mass.) –both longtime ACORN allies– is a whitewash.

"The first finding Conyers and Frank crow about in a press release is this: 'There were no instances of individuals who were allegedly registered to vote improperly by ACORN or its employees and who were reported 'attempting to vote at the polls.'

"This is demonstrably false. Darnell Nash of Cleveland, Ohio, was registered to vote nine times by ACORN. After fraudulently casting a ballot, he was convicted of both vote fraud and voter registration fraud and sentenced to six months imprisonment. ACORN remains under investigation by the elected Democratic prosecutor Bill Mason in Cuyahoga County (at least according to Mason’s spokesman the last time I spoke to him).

"And to think — our tax dollars paid for this worthless report."

Vadum is right about ACORN wrongdoing being "whitewashed" in the report, Democrat coverup for its unofficial arm ACORN and Darnell Nash's fraudulent voting, but the whole CRC report is NOT "worthless" and dismissing it in its entirety as "nonsense" "whitewashes" the serious constitutional problem with the defunding of ACORN and the substantial legal risk (both criminal and civil) undertaken in the pursuit of the "Pimp and Pro" ACORN sting in surreptitiously videotaping in Pennsylvania, Maryland, California and perhaps Florida.

Here's the report summary:

"In response to your request that CRS research several issues relating to the Association of Community Organizations for Reform Now (ACORN) and its affiliates, CRS has compiled the following information.

"1. Investigations concerning ACORN. You asked for a list giving the status and results of a) all pending or previous federal, state or local criminal or agency investigations concerning ACORN; b) all pending or previous congressional investigations concerning ACORN; c) all pending or previous internal ACORN investigations; and d) all pending requests (other than those made to CRS) for investigation of ACORN by any Member of Congress or any committee. The following memo by Julia Taylor (x75609) contains information on pending and previous federal, state, local, and internal investigations concerning ACORN obtained from news sources. The tables in the memorandum include basic details about the investigation and direct quotations taken from the source document; however, CRS did not verify the information in the source.

"2. Federal funding received by ACORN. You asked for a description of all federal funding received by ACORN over the last five fiscal years and a description of instances where ACORN violated the terms of federal funding. The following memo by Meredith Peterson (x78990) presents information on federal funding received by ACORN. A search of reports of federal agency inspectors general did not identify instances in which ACORN violated the terms of federal funding in the last five years.

"3. Effect of alleged false voter registrations by ACORN workers. You asked CRS to research improper voter registrations that resulted in people being placed on the voting rolls and attempting to vote improperly at the polls. As you discussed with Julius Jefferson (x75593) a NEXIS search of the ALL NEWS file did not identify any reported instances of individuals who were improperly registered by ACORN attempting to vote at the polls.

"4. Recent 'sting' activity concerning ACORN. You asked CRS to research and report on the federal and state laws that could apply to the recent videotaping of ACORN workers and the distribution of conversations with ACORN workers without consent. This issue is addressed in the following memo, 'Allegations of Recording Conversations With Various ACORN Affiliated Individuals Without Their Consent: Implications Under Various Federal and State Laws Relating to the Interception of Oral Communications' by Charles Doyle (x76968). The memo explains that 'as a general matter federal law permits private individuals to record face to face conversations, as long as the recording is not done for criminal or tortious purposes. New York law seems even more forgiving, for it only reaches those who record remotely. The laws of the District of Columbia mirror federal law prior to the 1986 amendments to the federal statute. D.C. law permits one-party consent recordings, although the consequences of the want of complete symmetry with federal provisions are unclear. In contrast, the laws of Maryland and California appear to ban private recording of face to face conversations, absent the consent of all of the participants.'

"5. Effects of ACORN activity concerning housing. You asked CRS to research and describe the extent to which ACORN has assisted the homeless and provided housing opportunities to for low-income individuals. CRS did not identify any rigorous and independent evaluation of the effectiveness of ACORN’s affordable housing activities. The following literature review prepared by Meredith Peterson (x78990) lists reported examples of ACORN’s activities to promote the development of affordable housing, to provide counseling to first-time homebuyers and homeowners facing foreclosure, and to support individuals affected by Hurricane Katrina. Please note that CRS did not verify the information provided in these reports.

"6. Analysis of legislation to prohibit funding to ACORN. This issue is addressed in the attached CRS Report R40826, The Proposed 'Defund ACORN Act' and Related Legislation: Are They Bills of Attainder? by Kenneth Thomas (x75006). The report states that 'while the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one, it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN under the proposed Defund ACORN Act fits that purpose, at least when the ban is applied only to ACORN and all its affiliates. The brevity of the funding moratorium imposed on ACORN and its affiliates under the 2010 Continuing Appropriation Resolution, however, could arguably be justified as an expedience necessary to address an issue of immediate congressional concern, while allowing Congress sufficient time to consider a longer term solution.' Attachments referenced in the following memos are provided in a separate file.

The CRC report rightly expressed concern that the defunding might be unconstitutional: "In general, absent an agency proceeding to determine that ACORN and every one of its affiliates have engaged in unlawful behavior, the permanent exclusion of all of these organizations under the proposed Defund ACORN Act would be difficult to justify as regulatory in nature. While the Supreme Court has noted that courts will generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive intent, there appear to be several potential problems raised by attempts to find a rational non-punitive regulatory purpose for this legislation. Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that the proposed Defund ACORN Act violates the prohibition against bills of attainder. The question of whether the Continuing Resolution would be found to be a bill of attainder is a closer question. The brevity of the limitations imposed on ACORN under that law could arguably be justified as an expedience necessary to address an issue of immediate congressional concern, allowing Congress sufficient time to consider a longer term solution. The application of this limitation to ACORN and all its affiliates, on the other hand, would appear to present more of a concern, since there appears to be little information contained in the legislative history to suggest that all ACORN affiliates have engaged in significant misdeeds. Ultimately, it would appear that a successful defense of this legislation would require the development of a significant factual record not presently found in the legislative history of these provisions."

That concern was reasonable. On December 11, 2009, in ACORN v. United States, 09-cv-4888(NG) (E.D.N.Y.), Judge Nina Gershon ruled that Congress cannot "declare that a single, named individual is barred from all federal funding in the absence of a trial" and "the discretionary nature of governmental funding does not foreclose a finding that Congress has impermissibly singled out plaintiffs for punishment" and she could not "discern any valid, non-punitive purpose for Congress enacting the legislation in this case."

Likewise, the report's analysis of the law on surreptitious recording is sound, not "worthless." Even though Vadum and I may not approve, a state may constitutionally criminalize and impose civil liability for surreptitious recording. As the United States Supreme Court held in Bartnicki v. Vopper, 532 U.S. 514 (2001), which involved both the federal and Pennsylvania laws against surreptitious recording, a publisher who has lawfully obtained information from a source who obtained it unlawfully may not be punished by the government for the ensuing publication based on the defect in a chain, but that "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)."

Samantha Harris, "Hard Cases Make Bad Law" (April 25, 2007) (http://www.thefire.org/article/7969.html): "It is often said that hard cases make bad law, because when something particularly awful or unusual happens, logic is often subjugated by a judge’s, a jury’s, or a legislature’s desire to address the particular situation at hand."

Unfortunately, law and logic seem to be subjugated on both sides when it comes to ACORN and Obama.

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.