Did James O'Keefe even commit a crime?
By: J.P. Freire
Associate Commentary Editor beltway-confidential
01/29/10 12:15 PM EST
Claims that he had attempted to wiretap the Louisiana offices of Democratic Sen. Mary Landrieu are false, said activist blogger/videographer James O'Keefe in a statement on BigGovernment.com this morning:
<<< The government has now confirmed what has always been clear: No one tried to wiretap or bug Senator Landrieu’s office. 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.
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 suggested this in an earlier post, noting that the affidavit issued by the government lacked any indication of actual wiretapping equipment. While it certainly invites criticism to enter a federal building supposedly "under false pretenses," putting on a particular kind of outfit and enter a federal property that is open to the public is not itself a crime (especially if you provide all identification asked of you and don't lie to security). And is misrepresenting onesself to a Senate staffer really a crime? Picking up a phone (which is federal property) with permission given based on false pretenses might be a problem, but if no harm was done or intended to the equipment, this also seems unlikely to be prosecuted.
The relevant law, about "making false statements," is in U.S. Code Title 18 Part 1 Chapter 47 Section 1001:
<<< Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years. >>>
Before you think that O'Keefe might be headed to the slammer for five years, here's the glaring exception:
<<< (c) With respect to any matter within the jurisdiction of the legislative branch, subsection
(a) shall apply only to—
(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate. >>>
The fact that O'Keefe had a camera on the entire time will likely provide evidence enough to either exonerate or incriminate him and his colleagues.
There's also the Borat precedent: People have misrepresented themselves and gained access to federal employees before. Da Ali G, for instance, interviewed Thomas Pickard, assistant director of the FBI, and then went to the FBI training academy's "Hogan's Alley."
Questions remain: Why were four people necessary to pull this stunt off? Did O'Keefe and his colleagues misrepresent themselves to security staff of a federal building? Is it illegal to use federal property, a telephone in this instance, under false pretenses? (If it were a computer and O'Keefe were viewing material, that would be one thing. But merely looking at a phone?) Who is responsible for criminal charges -- can Landrieu have them dropped if she likes?
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