Topic category:  Government/Politics

California Attorney General's April Fool's Day "Joke": No crimes are shown on those surreptitiously recorded tapes made at the ACORN offices in Los Angeles, San Bernardino and San Diego and we can't prosecute the apparently criminal surreptitious recording because we gave immunity to get the tapes to check for prosecutable crimes.

But it's really true (and trying to bury the story by releasing it on Holy Thursday is to be expected).

The "Pimp and Pro" ACORN Sting broke on September 10, 2010, the same day that Andrew Breitbart's Big Government website debuted. It was not sheer coincidence and Breitbart's first post on Big Government (http://biggovernment.com/abreitbart/2009/09/10/introducing-james-o%e2%80%99keefe/#more-402) commenced with a claim that "James O’Keefe came to {Breitbart's] door in August' to show him sensational surreptitiously recorded video of a visit by O'Keefe and Hannah Giles to an East Coast ACORN office and concluded:

"my advice to James is this: You can put this thing out your way, but you should also offer the full audio and full transcript so that people can hear and see them in their entirety – sans edits. So they can judge for themselves.

"James agreed and has posted them on his website. We have posted the audio....

"View the complete transcript here."

Ten days later, Breitbart elaborated on his advice to O'Keefe in a follow up post (http://biggovernment.com/abreitbart/2009/09/20/planting-the-seeds-the-politicized-art-behind-the-acorn-plan/):

"I was awed by Mr. O'Keefe's guts and amazed by the footage, but explained that the mainstream media would try to kill this important and illuminating expose about a corrupt and criminal political racket, and that the well-funded political left would go into 'war room' mode, with 25-year-old Mr. O'Keefe and 20-year-old cohort Miss Giles in the cross hairs. I felt I had a moral obligation to protect these young muckrakers from the left and from the media, and to devise a strategy that would force the media's hand.'

"I told him that in addition to launching his compelling and stylized Web videos, we needed to offer the full transcripts and audio to the public in the name of transparency, and to offer Fox News the full footage of each video before each was released...."

When it came to the surreptitious recording made in California after O'Keefe met Breitbart, however, Breitbart apparently did not feel obligated to warn that surreptitious recording of private communications is a felony in California, perhaps because, in Breitbart's words, "the magnitude of [O'Keefe's] latest adventure had the potential to rock the political establishment."

By November, Breitbart had learned of an ACORN "document dump" in California and wrote to let the public know he wanted to cooperate with law enforcement, because laws must be upheld (http://biggovernment.com/abreitbart/2009/11/23/acorn-scandal-part-2-the-evidentiary-phase/#more-35602).

Breitbart;

"We are a nation of laws. The Attorney General of California and the attorney general of the United States have made a solemn oath to uphold these laws. Attorney General Holder and Attorney General Brown are arguably the two most powerful law enforcement officers in the country.

"We are willing to facilitate copies being sent of all the documents recovered from the public dumpster outside the ACORN office and forward these to Attorneys General Brown and Holder. There are reasons ACORN dumped these documents before the scheduled visit by Brown’s office. The question millions want to know, now that ACORN has again brazenly mocked our nation’s laws: Will Holder and Brown do their jobs?."

But Breitbart picks which laws he wants enforced and which ones he doesn't, and that law making surreptitious recording a felony in California is not on Breitbart's "good law" list, at least when O'Keefe and Giles are doing the surreptitious recording and ACORN is the target

Apparently there was a price for California Attorney General Jerry Brown for the unedited video that Breitbart advised be provided free to Fox News: immunity from criminal prosecution. Attorney General Brown's office decided that it "needed the complete, unedited video and audio recordings made by O’Keefe and Giles," O'Keefe and Giles decided that they needed immunity and a deal was made before the video was provided to Attorney General Brown's office that General Brown blamed on Governor Arnold Schwarzenegger.

Attorney General Brown's office's report (http://ag.ca.gov/cms_attachments/press/pdfs/n1888_acorn_report.pdf) stated: "O’Keefe and Giles agreed to produce the full recordings if the Attorney General agreed not to prosecute them for violations of California’s privacy laws. This Office determined that the fastest and most efficient means to comply with the Governor’s request was to agree not to prosecute." The report further indicates that O'Keefe and Giles were wise to refuse to cooperate unless they received immunity, because the facts presented strongly suggest that O’Keefe and Giles’s violated state privacy laws and warned that this type of activity can be prosecuted in California.

"Liability Under California Law for Making Covert Recording of confidential Conversation

"California law generally prohibits the recording of confidential communications without the consent of all participants where there is an objectively reasonable expectation that the conversation is not being overheard or recorded. to meet the Governor's request to investigate ACORN, this Office needed the complete, unedited video and audio recordings made by O'Keefe and Giles, who are not in California. O'Keefe and Giles agreed to produce the full recordings if the Attorney General agreed not to prosecute them for violations of California's privacy laws. This Office determined that the fastest and most efficient means to comply with the Governor's request was to agree not to prosecute.

"In light of this limited grant of immunity, we did not focus on the circumstances surrounding the conversations to determine if the recordings themselves violated California law. Nevertheless, we take this opportunity to note the legal principles governing clandestine recording of conversations in California. Whether a recording of a conversation is unlawful depends on the circumstances of the conversation and the expectations of the parties. In 1967, the California legislature adopted the Invasion of Privacy Act, codified at penal Law sections 630 through 638. The Act is designed to protect the right of privacy by requiring the consent of all parties before a confidential conversation is recorded. (Flanagan v. Flanagan (20020 27 Cal.4th 766, 768-769 (Flanagan.) The eavesdropping and recording provision, section 632, provides that any person who intentionally and without consent of all parties to a confidential communication records such conversation is guilty of an alternate felony/misdemeanor. (Penal Code, § 632(a).) A private right of action also exists for any person injured by a violation of the Act. (Id., § 637.2) Section 632 defines confidential communication to include 'any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.' (Id., 632(c).) A communication made in a public place or 'in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded' does not qualify as a confidential communication under the statute. (Id.) Confidentiality 'appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is "listening in" or overhearing the conversation.' (Flanagan, 27 Cal. 4th at pp. 772-773.) The fact that the subject matter of the conversation might later be discussed with a third party has no bearing on a finding of confidentiality under the statute. (Coulter v. Bank of America (19940 28 Cal.App.4th 923, 929.) Although the Act contains exemptions for particular individuals or circumstances, no exemption exists for filmmakers, the media or journalists.

"An application of these principles to the facts presented here strongly suggests that O'Keefe and Giles[] violated state privacy laws and provides fair warning to them and others that this type of activity can be prosecuted in California."

Noteworthy points:

The California Attorney General's report does not state whether immunity was given only to O'Keefe and Giles. The report notes that a person identified as "Ryan" accompanied O'Keefe and Giles when they visited ACORN's San Bernardino office. If he was knowingly assisting in surreptitious recording, he may be subject to prosecution. Likewise, anyone assisting in the sting who was aware of the surreptitious recording may need something to trade for immunity.

Unless Pennsylvania and Maryland gave immunity too, each of them may opt to prosecute based on surreptitious recording, Pennsylvania based on surreptitious recording at ACORN's Philadelphia office and Maryland based on surreptitious recording at ACORN's Baltimore office).

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

If the full tapes were offered to Fox News, as Breitbart said he advised, and Fox News accepted and reviewed them, then the California Attorney General's report shows that Fox News reporting was more sensational than "fair and balanced." The California Attorney General posted much more tape than Breitbart's Big Government. Read the report and watch and/or listen to the tape (http://ag.ca.gov/newsalerts/multimedia/index.php) and decide for yourself.

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.