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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  January 30, 2010
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Topic category:  Government/Politics

James O'Keefe's Written Statement: Good Grief, Mr. O'Keefe

O'Keefe's main problem is not whether professional journalists like David Shuster can get facts straight or are credible, but whether he committed a crime in Louisiana and will be prosecuted for it. O'Keefe is right about media misreporting, but it is not relevant to whether crimes were committed during the Louisiana caper and the sins of the media he complained of apparently are not the fault of the prosecution. His statement has me pondering whether now he will be prosecuted in Pennsylvania, Maryland and California too.

The good news is that at last James O'Keefe has issued a statement on the Louisiana caper (http://biggovernment.com/2010/01/29/statement-from-james-okeefe/#idc-cover).

The bad news is that the statement is unconvincing, incriminating and notable for what is not included.

O'Keefe is charged with aiding and abetting others "to commit...entry for the purpose of interfering with [a] telephone system on January 25, 2010." Instead of unqualifiedly denying that, O'Keefe denied that anyone "tried to wiretap or bug Senator [Mary] Landrieu’s office" or "to cut or shut down her phone lines." He was not charged with trying to wiretap or bug or cut or shut down and it is not clear that accessing a telephone closet under false pretenses is not interfering with a telephone system, even if no wiretapping, cutting or shutting down was contemplated.

O'Keefe's statement supports the claim that he aided and abetted Flanagan and Basel in entering federal premises under false pretenses.

http://www.lectlaw.com/def/a033.htm on aiding and abetting:

"The guilt of a person in a criminal case may be proved without evidence that he personally did every act involved in the commission of the crime charged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished through direction of another person as an agent, or by acting together with, or under the direction of, another person or persons in a joint effort.

"So, if the acts or conduct of an agent, employee or other associate of the person are willfully directed or authorized by the person, or if the person aids and abets another person by willfully joining together with that person in the commission of a crime, then the law holds the person responsible for the conduct of that other person just as though the person had engaged in such conduct himself. Notice, however, that before any person can be held criminally responsible for the conduct of others it is necessary that the person willfully associate himself in some way with the crime, and willfully participate in it. Mere presence at the scene of a crime and even knowledge that a crime is being committed are not sufficient to establish that a person either directed or aided and abetted the crime."

This sentence in O'Keefe's statement is a telling admission that O'Keefe was not merely present and aware that a crime was being committed (if one was): "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." Even though O'Keefe arrived in Senator Landrieu's office first and apparently not under false pretenses, he admitted having been engaged in a joint effort with Flanagan and Basel and it is alleged and apparently not disputed that O'Keefe "positioned his cellular phone in his hand so as to record FLANAGAN and BASEL." The hope that acts of Flanagan and Basel cannot be attributed to O'Keefe was dashed by O'Keefe's written statement (if not earlier when he was questioned).

O'Keefe curtly conceded that he could have used "a different" investigative approach, but he did not try to explain why he took the approach he took or why two of his allies in the investigation proceeded under false pretenses by impersonating telephone service technicians in order to access a telephone closet.

Also, O'Keefe did not state whether he is or is not an employee of Andrew Breitbart or a legal entity of which Breitbart is a principal or specify who he meant by "we" when he stated that "we decided to visit Senator Landrieu’s district office." (Breitbart denied any advance knowledge of the Lousiana caper and insisted that it was conducted outside the scope of employment if O'Keefe is an employee, but Breitbart has not said whether O'Keefe is an employee or independent contractor.)

Amazingly, O'Keefe said that he found it "amazing to witness the journalistic malpractice committed by many of the organizations covering this story," but did not express amazement at the investigative approach he took.

O'Keefe: "The government has now confirmed what has always been clear: No one tried to wiretap or bug Senator Landrieu's office."

That wasn't clear initially, but it now appears that the Louisiana caper did not involve wiretapping or bugging and that the federal government never claimed that it did.

Instead, FBI Special Agent Steven Rayes stated in an affidavit that "there is probable cause to believe that" Joseph Basel and Robert Flanagan "entered and attempted to gain entrance to the office and telephone system of United States Senator Mary Landrieu, located in the Hale Boggs Federal Building...for the purpose of interfering with the office's telephone system....by falsely and fraudulently representing that the[y] were employees of a telephone company" and O'Keefe and Stan Dai "aided and abetted...in the execution of the plan."

Some media jumped to the conclusion that attempted wiretapping was involved, but that's NOT what Special Agent Rayes alleged.

O'Keefe continued: "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."

Since Basel and Flanagan never gained access to the telephone closet, they were never in a position to shut down phone lines, so the denial definitely seems credible to me. But O'Keefe did not explain what Basel and Flanagan, each of whom was wearing a tool belt, planned to do if they had gained access to the telephone closet, and people who enter an office under false pretenses seeking access to a telephone closet have a big credibility problem and their assurance that they had only the best of intentions will not be blindly accepted.

O'Keefe:

"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."

I agree that O'Keefe is an investigative journalist and that Senator Landrieu merited investigation, but O'Keefe has not explained why Basel and Flanagan entered the office under false pretenses and impersonated telephone repair men. They could have asked the staff if the phones were working without any deception and the reason for the deception that they perpetrated remains unknown.

O'Keefe acknowledged that the plan could have been better: "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."

This acknowledgement is problematic for O'Keefe, Basel, Flanagan and Dai. If the sole intent of their investigation was to determine "whether or not Senator Landrieu was purposely trying to avoid constituents who were calling," there was no need for any false pretenses, any tool belts, or any request to access the telephone closet. Since there were false pretenses, tool belts and a request for access to the telephone closet, O'Keefe's explanation is not satisfying to me or fair-minded conservatives like HotAir's Ed Morrissey, at HotAir.com.

Morrissey (http://hotair.com/archives/2010/01/29/okeefe-claims-vindication/):

"...the report filed by the FBI,- detailing what the witnesses told them about the operation... remains to be tested in court, but the description therein doesn’t quite square with O’Keefe’s explanation. They wouldn’t have needed to get access to the telephone closet in order to observe people answering the phone, and attempting to access it under false pretenses (representing themselves as telephone-company technicians) strongly implies that they wanted access for other reasons."

"...dressing up as telephone repairmen wouldn’t have been necessary at all to get undercover video of people answering the phone, or not answering it, as the case may be. If all O’Keefe and his people wanted was an admission that the phone system was working, then the disguise may have helped, but it still wouldn’t have been necessary to gain access to the phone closet."

O'Keefe distracted attention from his story by referring to the "Pimp and Pro" ACORN sting conducted in several jurisdiction (some of which permit one-party consent to recording, but most of which do not) and mainstream media misreporting.

O'Keefe: "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."

O'Keefe's main problem is not whether professional journalists like David Shuster can get facts straight or are credible, but whether he committed a crime in Louisiana and will be prosecuted for it. O'Keefe is right about media misreporting, but it is not relevant to whether crimes were committed during the Louisiana caper and the sins of the media he complained of apparently are not the fault of the prosecution. His statement has me pondering whether now he will be prosecuted in Pennsylvania, Maryland and California too.

Michael J. Gaynor

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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.


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