Topic category:  Government/Politics

On January 27, 2010, National Review Online reported Hannah Giles' initial reaction to the Louisiana Caper as follows: "I am shocked by the reports of this behavior. I am well aware that following the law is an integral part of being a good investigative journalist. I take that responsibility and accountability very seriously. I certainly hope these reports are untrue."

That was a sensible response.

Sadly, Ms. Giles apparently hoped so much that the "following the law" thing slipped her mind and she wrote an article on the Louisiana Caper whitewashing James O'Keefe's actions in Louisiana and bashing Michelle Malkin for this sage advice:

"The Times-Picayune has not posted the full FBI affidavit, but the details they have are damning. This is neither a time to joke nor a time to recklessly accuse Democrats/liberals of setting this up — nor a time to whine about media coverage double standards. Deal with what’s on the table...."

"They are, of course, presumed innocent until proven guilty.

"But for now, let it be a lesson to aspiring young conservatives interested in investigative journalism: Know your limits. Know the law. Don’t get carried away. And don’t become what you are targeting."

" Allahpundit has the relevant legal statutes/analysis. Not good."

It has been said that hell hath no fury like a woman scorned, but that was said before mainstream media attacked James O'Keefe as a wiretapper in connection with the Louisiana Caper, a sting that backfired badly and may have repercussions for the persons who brought us the "Pimp and Pro" ACORN sting. The twenty-year old Ms. Giles, now famous as "the Pro" in the "Pimp and Pro" ACORN videos, ardently and angrily defended her 25-year old friend, O'Keefe, in an astonishing article titled "Once Again, James O’Keefe Strips Away the MSM’s Mask of Neutrality, Revealing the Bias Below," posted at Big Government (http://biggovernment.com/2010/02/02/once-again-james-okeefe-strips-away-the-msms-mask-of-neutrality-revealing-the-bias-below/).

Ms. Giles put aside the troublesome facts and law and passionately presented O'Keefe's Louisiana Caper and its impact on herself this way: "This past week marked one of the strangest periods of my life. And yes, the arrest of my friend and colleague James O’Keefe had a lot to do with it. James found himself, once again, in the middle of a raging media battle all because he wanted to shine a little light on public corruption."

I believe that O'Keefe "wanted to shine a little light on public corruption," but the truth is that he he did find himself again in the middle of a raging media battle simply because he had that intention and the charge that O'Keefe was arrested because the United States Justice Department resent him, Ms. Giles and Andrew Breitbart as a result of the "Pimp and Pro" sting is absurd. O'Keefe found himself in the middle of a raging media battled because he pursued that intention without respecting the federal criminal laws that prohibit entering federal property (like a United States Senator's office under false pretenses (like being a telephone service technician) and aiding and abetting. It is not clear whether O'Keefe was unaware of the law or convinced he was not bound by it, because he is a crusading investigative journalist, but the law is clear, entering federal premises under false pretenses is forbidden and expecting the federal authorities and the media to disregard the law is folly.

Obviously impressed with O'Keefe's boldness, Ms. Giles gushed:

"Let me tell you something, he certainly rang in the New Year with this one. As James said: 'My goal is to expose corruption and lack of concern for citizens by government and other institutions…' Target: Mary Landrieu. Why: she’s been taking legal 'bribes' in the form of the 'Louisiana Purchase”' in exchange for her vote on Sen. Harry Reid’s healthcare bill, and ignoring phone calls from her outraged constituents. Bold, dirty, rude politics at its finest.

"Putting his head down, and plowing ahead, James was off to New Orleans working on a new project. A project that would hopefully raise questions, demand answers, and spur people to action."

So far, so good.

But, as Ms. Giles conceded, there was a "complication" and she should be glad that she was not asked to come along for O'Keefe's latest adventure.

Ms. Giles: ""The complication: James and three of his colleagues were arrested in the process."

BAD!

Ms. Giles, who has yet to graduate from college, much less law school, looked on through rose-colored glasses and confidentally opined that "the U.S. Attorney in charge of the case has recused himself, a sure sign that the case is rapidly crumbling."

That's wishful thinking (or, as Governor Palin might put it, "putting lipstick on a pig."

Perhaps Ms. Giles was misled by something posted at Andrew Breitbart's Big Government: "U.S. Attorney Steps Down From O'Keefe Case" (http://biggovernment.com/2010/02/01/u-s-attorney-steps-down-from-okeefe-case/) as part of his effort to help O'Keefe.

That article began:

"The same day the man who first published James O’Keefe’s explosive videos exposing wrongdoing at community organizer ACORN came to his defense Monday, claiming the conservative filmmaker 'sat in jail for 28 hours without access to an attorney' while the prosecutor made his case to the media, the U.S. attorney involved stepped down.

"O’Keefe, accused of trying to tamper with the phones of Louisiana Sen. Mary Landrieu, was 'framed' by the media and the U.S. attorney’s office, Andrew Breitbart, publisher of BigGovernment.com, told Fox News Monday.

"Hours later, Jim Letten, U.S. attorney for the Eastern District of Louisiana, recused himself from the case."

It is true that media misreported that O'Keefe had been charged with attempted wiretapping instead of attempted tampering, but the notions that U.S. Attorney Letten recused himself because Breitbart had come to O'Keefe's defense and recusal signified a crumbling case are rank revisionist history and sheer nonsense.

Letten, who is a member of United States Attorney General Eric Holder's advisory committee, recused himself the day after O'Keefe and three others were arrested in connection with the Louisiana caper. That was BEFORE Breitbart's defense of O'Keefe and attack on the U.S. Attorney's office. There are other reasons having nothing to do with the merits of the case that can explain such recusal, such as the fact that one of the other three is the son of an acting United States Attorney in another Louisiana district. If Letten had NOT recused himself, Breitbart would probably be demanding that he do so. Tellingly, O'Keefe himself did not criticize the United States Attorney's office when interviewed by Sean Hannity last night.

Ms. Giles: "For 48 hours, rampant rumors of phone taps, possible felonies, rash behavior and the phrase 'Watergate Jr.' spread like wildfire. No one knew the reality of the situation. Even I was very concerned by the initial reports. I had no inkling of this project and once again found myself a victim of the MSM’s filthy, desperate and fact-free drive-by reporting."

Thus Ms. Giles, like Breitbart before her, claimed to be utterly unaware in advanceof what O'Keefe was up to in Louisiana last month. Also like Breitbart, Ms. Giles focused on what was NOT charged instead of what was charged and treated O'Keefe as an innocent victim (which, ironically, is the status ACORN claims for itself).

Ms. Giles: "...it appears Mary Landrieu’s office vastly exaggerated the situation, and yet the MSM ran with it."

Ms. Giles did not offer any evidence against Senator Landrieu's office and really should not be surprised that "the MSM" focused on the Louisiana Caper the way it did. The mainstream media recently focused on the story of a young man who suddenly became newsworthy because he violated airport security rules at Newark International Airport in New Jersey in order to kiss his girlfriend and thereby caused a great deal of trouble to travelers and airlines. O'Keefe already was newsworthy and what he did at Senator Landrieu's New Orleans office definitely was newsworthy.

Ms. Giles obviously is not at all disappointed in the intrepid O'Keefe or his sometimes inpaired judgment, but she is deeply distressed by the reporting (and misreporting) and Senator Landrieu's "overeaction to O'Keefe's video project."

Ms. Giles:

Note to everyone: throwing out words like 'wiretapping' in regards to a federal phone system is the equivalent to screaming 'bomb” on an airplane….Don’t say it unless you mean it. Or else, all the attention will zero in on you and things will quickly get complicated.

"In fact, Landrieu’s overreaction to O’Keefe’s video project ought make the public wonder what the heck is actually going on in the office that her constituents are permitting her to occupy for at least a little while longer. But instead we had ACORN’s CEO, Bertha Lewis, using the incident as an opportunity to, once again, excuse her employees’s behavior in our 'ACORN Housing helps underage sex slave' videos. We saw inappropriate and vicious attacks from the MSM, and watched some members of a movement turn its back on a man they considered a hero less than a week ago."

Note to Ms. Giles: Surreptitious recording is felonious in Pennsylvania, Maryland, California and your home state of Florida, entering federal premises under false pretenses is a crime, investigative journalists are not immune from criminal or civil liability, O'Keefe should have realized that if he gave Bertha Lewis a club, she'd use it, and not all "heroes" are always law-abiding!

Note that in her first tribute to O'Keefe, "The Truth is Too Scandalous for YouTube" (September 23, 2008) (http://townhall.com/columnists/HannahGiles/2008/09/23/the_truth_is_too_scandalous_for_youtube), Ms. Giles not only described O'Keefe as "[a] young lawyer in training, full of prospects and dreams [who] takes no prisoners," but also lauded him for respecting the law in pursuing his causes: "In the summer of 2007 O’Keefe made phone calls to several Planned Parenthood clinics across the country. He only made these phone calls in states where it is legal to audio record without the other party's consent (i.e. Ohio, New Mexico, Idaho, Oklahoma)."

By 2008, neither Ms. Giles nor O'Keefe seemed concerned about checking state law on recording.

Ms. Giles's main target in her article was the mainstream media.

Ms. Giles:

"What I’ve learned is this: the MSM is the primary force of the Democratic Party. If the MSM is lying to you, guess who else is? Someone has to feed them stories. Time and time again the MSM has been caught in a self-created web of lies, and the vast majority of these reports do one thing, and that is mask the true, ugly face of liberalism.

"Listen, the MSM is officially beyond biased and slanted reporting. Right now, it is on the 'bold dishonesty' level. They are essentially pelting the public with hot, stinky manure, and it is completely insulting."

Ms. Giles surely has a point.

But MSM bias or even blatant dishonesty does not magically legalize what the law criminalizes.

Unfortunately, the MSM does not have a monopoly on lying and, worse, Ms. Giles expects conservatives to mindlessly support Breitbart, O'Keefe and Giles, or else be branded a conservative elitist afraid of the mainstream media.

Ms. Giles:

"Andrew Breitbart has made the new media trendy, and after the ACORN videos everyone and their conservative dog was on the new-media campaign bandwagon. 'Yay, yay we are back to save the day. Glory and victory all the way!' But then, the second things got a little spicy, POOF, they’re gone.

"For instance, Michelle Malkin, a once avid supporter/defender of James and all his work, called for an example to be made out of him, and instructing other young journalists to not follow in his footsteps. Again, this was before she knew his side of the story.

"The bottom line is, conservative elites are afraid of the MSM. They are constantly two-steppin’ to stay in their good graces while secretly cursing them beneath their breath. It is no wonder they’ve had their rear ends handed to them so badly in past elections. I’m telling you, if conservatives don’t put on their game faces and strap on their big-boy boots, our nation’s demise is imminent."

Michelle Malkin as a cowardly conservative elitist?

Not in this or any other life. Ms. Giles. Check out Culture of Corruption.

Ms. Giles quoted Churchill: "Victory at all costs, victory in spite of all terror, victory however long and hard the road may be; for without victory there is no survival.”

So we can be confident that Ms. Giles now wants to win at any cost and etlessly excuses O'Keefe from complying with any legal "nicety" that might impede his path to "victory."

Ms. Giles: "Why do I think the MSM and the Liberals were so perversely obsessed with the possibility of James being a wannabe 'Watergate Jr.?' They lie, because despite all their money and power, they are scared. Not of the Republicans or Conservative movement, but of citizen journalists who hold truth in the highest regard. These people are at large, and on the rise. Which means some major power players have a lot to be afraid of."

Saul Alinsky would be amused that his ends-justify-the media attitude has poisoned conservatives as well as "progressives," but it's tragic, not funny.

The notion that an investigative reporter is above the law or freedom of the press is a get-out-of-jail card is nonsense. As the United States Supreme Court stated in Branzburg v. Hayes, 408 U.S. 665 (1972): "It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that '[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.' Associated Press v. NLRB, 301 U.S. 103, 132 -133 (1937)."

It is a crime NOT to report a felony. The first Congress passed a statute (1 Stat. 113, 6) which, as amended, is still in effect (18 U.S.C. 4), defining the federal crime of misprision: "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both." If, as they claimed, neither Breitbart nor Ms. Giles had advance knowledge of the Louisiana Caper, O'Keefe did them the favor of not putting them at risk of prosecution too, for failure to report.

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.