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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  February 2, 2010
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Topic category:  Government/Politics

James O'Keefe's "Huge Misunderstanding" Defense

Hannity never went to law school, but he skillfully obtained from O'Keefe concessions that there is a "big different" between entering an ACORN office and entering a United States Senator's office and that O'Keefe entered Senator Landrieu's office under false pretenses.

Sean Hannity was the winner in his much anticipated interview of James O'Keefe last night. Hannity showed himself to be a principled conservative properly pursuing the facts of O'Keefe's loony Louisiana Caper, not a shill or an apologist and certainly not a conservative equivalent of MSNBC radical Ed Schultz (who almost giddily gave radical ACORN Chief Organizer Bertha Lewis a stage on which to crow, falsely, that the Louisiana Caper proved that ACORN really was an innocent victim of his "Pimp and Pro" sting). Hannity very much appreciated the sensational ACORN videos starring O'Keefe as "the Pimp" and Hannah Giles as "the Pro," but he did not let his personal politics blind him to the facts or the law. Gullible, he was not.

Sometimes O'Keefe has been too zealous, or Alinsky-like, in pursuing his political agenda (with which I generally agree), but occasional excess zeal does not change ACORN's corrupt nature, sensationally shown in O'Keefe's "Pimp and Pro" ACORN videos released last year.

Hannity gave O'Keefe a full opportunity to explain what happened and O'Keefe chose what questions he wanted to answer and what questions to duck, based on the pendency of a legal proceeding.

O'Keefe, a former UCLA law student, is represented by Michael J. Madigan, a D.C.-based lawyer who notably supported Obama for President and Eric Holder for United States Attorney General. (Washington Post, November 19, 2008 ( "Michael J. Madigan, a Republican lawyer who has served in several high-profile positions on Capitol Hill but who supported Obama's bid for the presidency, said that 'the whole Marc Rich thing is a bad rap and it won't go anywhere' if GOP senators press it at confirmation hearings.") O'Keefe chose to appear without Madigan, but O'Keefe appeared to have been well advised not to address certain matters and to treat the United States Attorney's office very respectfully (while complaining about the apple sauce in jail and bashing the reprehensible media that grossly misreported the Louisiana Caper story.)

Hannity never went to law school (or supported Obama), but he skillfully obtained from O'Keefe concessions that there is a "big different" between entering an ACORN office and entering a United States Senator's office and that O'Keefe entered Senator Landrieu's office under false pretenses.

O'Keefe insisted that he did not think he had broken any laws, but he conceded that he had entered Senator Landrieu's posing as something that he was not and it IS a crime to enter federal premises under false pretenses, even if the person who enters doesn't think it is or should be. (It's not a crime to enter an ACORN office under false pretenses.)

O'Keefe's defense was to put on the mantle of investigative journalist. He referred to undercover operations by investigative journalists, but never mentioned an instance in which an investigative journalist had entered federal property under false pretenses.

O'Keefe and his three friends made a huge mistake, as Hannity clearly appreciated, and obviously are hoping for mercy from the United States Attorney handling the matter. (Madigan is a former federal prosecutor and O'Keefe pointedly declined to criticize the United States Attorney's office, even though Andrew Breitbart had publicly complained earlier in the day that O'Keefe had not been able to contact an attorney for more than a day after he was arrested.)

The Louisiana Caper may not be O'Keefe's biggest problem.

O'Keefe did not discuss the legality of surreptitious recording during the interview, but he does appear to believe that investigative journalists either are entitled to do it or should be excuse for doing it, at least if they expose wrongdoing by doing so, and the "Pimp and Pro" sting involved surreptitious recording in at least three states where it is felonious: Pennsylvania, Maryland and California.

If there are "huge misunderstandings," they are that O'Keefe and his three friends thought that they were entitled to enter federal premises under false pretenses and O'Keefe thinks investigative journalists may surreptitiously record regardless of the law of the applicable jurisdiction.

Neither is true.

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)."

Likewise, journalists are subject to civil liability. See Thomas Brom, "ACORN Sting," California Lawyer, Feb. 1, 2010 ( "ABC News successfully defended a sting by two of its reporters in 1992 who had been hired as food handlers by the Food Lion supermarket chain. Their surreptitious videotape of unhealthy food conditions was broadcast on Primetime Live, causing Food Lion's sales and stock price to drop and provoking a lawsuit (Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999)). The company alleged that ABC was liable for fraud, breach of the duty of loyalty, trespass, and unfair trade practices, among other claims. A jury found the defendants liable for fraud, and the reporters liable for breach of the duty of loyalty and trespass. But on appeal, the Fourth Circuit reversed the fraud verdict, holding that newsgathering implicates First Amendment interests. It affirmed the reporters' liability for breach of the duty of loyalty and trespass, but it awarded Food Lion only $2 in damages. The court observed, however, that 'the media have no general immunity from tort or contract liability.' (194 F.3d at 520 (citing Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995)).)"

In the same article, Thom noted that in California surreptitious recording is a violation of the state's Invasion of Privacy Act (Cal. Penal Code 630637.9) and that "[t]here's a chance Attorney General Jerry Brown might charge [O'Keefe, Ms. Giles and Breitbart] with violating California's privacy act.

The Lousiana Caper has increased the likelihood of such charges and O'Keefe's appearance of "Hannity" will be of use to the United States Attorney, since it contains admissions.

The law is not supposed to be a respecter of persons or politically biased, but prosecutors should consider all circumstances, including the youth and lack of malice of a well-intentioned zealot.

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,,, and 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

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