Tampergate: O'Keefe denial depends on same reporter it damns

RAW STORY obtains MSNBC video claiming judge 'instructed the four not to talk'

Even though his lawyer apparently pre-approved it, a statement posted by a conservative activist arrested for attempting to "interfere with" the telephone system inside a US senator's office is striking for a number of reasons.

Last Friday, James O'Keefe released a denial on Big Government that anyone "tried to wiretap or bug Senator Landrieu’s office," after he was arrested along with three comrades a few days before on January 25th. Purportedly intended to address "inaccurate and false" reports of what actually happened, the statement reads more like a political broadside against the media than anything else.

Since the case is to be potentially tried in a courtroom, as opposed to a Sunday morning political talk show, some observers are questioning the strategy, while others are wondering if it skirts the conditions for his release. Only a few bloggers even pointed out that the statement doesn't seem to match the facts.

One thing that has gone unnoticed in the multiple press reports on the not exactly apologetic denial is that O'Keefe, and Andrew Breitbart's website Big Government, are cherry-picking news reports to "prove" their case in the media. A RAW STORY examination of the facts reveals that O'Keefe's statement depends on the same reporter that it later damns for committing "journalistic malpractice."

The Times-Picayune reports, "While attorneys typically advise clients after their arrest to keep quiet, Michael Madigan, the Washington attorney representing O'Keefe, said in an e-mail message Friday that the statement 'was necessary due to the massive misreporting' of the incident."

Notably, as Media Matters points out, O'Keefe and Big Government, who has been compiling a list of media outlets that owe apologies and/or retractions, are ignoring conservative outlets like The New York Post and The Corner who committed similar "journalistic malpractice."

NBC News reports 'judge instructed the four not to talk'

Last Thursday, RAW STORY reported, "If there is a gag order against accused phone tamperer James O'Keefe then the once-celebrated conservative activist/journalist/prankster/defendant just might have broken it Wednesday night."

The report hinged on an NBC News reporter's account and the following O'Keefe Tweet: "Govt official concedes no attempt to wiretap."

Sometime around noon on December 27, MSNBC's News Live welcomed NBC News justice correspondent Pete Williams to discuss the "convoluted story."

"Now, normally James O'Keefe is a fairly talkative young man but the judge has instructed the four not to talk, so we don't know if we're going to hear anything further from him," Williams wrongly predicted.

Contacted by RAW STORY, Professor Jonathan Turley, a nationally recognized legal expert, concurred, "It could indeed violate an order. It is extremely unwise for clients to be tweeting on their case even without such an order. Mr. O'Keefe has a record of reckless conduct and this would certainly add to that record."

"Having said that, these orders often create a conflict for counsel in zealous representation and protecting a fair trial," Turley added. "Mr. O'Keefe is being widely accused of an attempted wiretap. He has an interest in rebutting such claims. Yet, it is always problematic for a client to directly manage the media. While a tweet is not likely to result in serious punishment in this case, it can bring a sharp rebuke and undermine the relationship with the court."

At his blog, Turley added, "O’Keefe seems to relish reckless acts. His stunt with ACORN appears to have violated state laws. Even without a surveillance conspiracy, the Landrieu stunt is still quite serious. What is interesting is that O’Keefe hardly needs to directly communicate such information given the press attention in the case."

Later Thursday night, Turley discussed the Tweet on MSNBC's The Rachel Maddow show. Maddow hyped the segment earlier in the show by stating, "Four guys charged with trying to tamper with the phone system in a United States senator‘s office. Now, one of them is tweeting about it in violation of what I thought was a legal gag order. That‘s next with Jonathan Turley." Maddow also referred to "a reported gag order" later.

"Why is the tweet significant?" Maddow asked Turley. "How could he get in trouble for tweeting about the case if there is a gag order?"

Turley responded: "Well, if there‘s a gag order, it usually binds all parties and you‘re not allowed to discuss the case. That can sometimes raise some constitutional issues about a person‘s right to defend himself in public. But usually, if you want to get outside of a gag order, you have to petition the court. But putting aside the gag order and the possibility of contempt, it‘s a uniquely stupid thing for a defendant in a criminal case to be addressing the media or the public directly. It‘s a very dangerous practice, and I don‘t know any attorney that would tolerate such a thing."

"Why is it dangerous?" Maddow asked.

Turley added, "Well, because anything that you say in public usually can be admissible in court. It also tends to destroy the relationship with the judge. It could bring a charge of at least a technical violation or a contempt sanction."

However, as O'Keefe argues, while there doesn't appear to be any specific "gag order" there are other indications that the judge has advised the defendants who are each facing potentially a decade behind bars not to talk about the case.

Gag order or no gag order?

Last Friday, TPMMuckraker's Justin Elliott reported, "O'Keefe also appears to be correct that there was never any gag order in the case, despite media reports. A clerk at the U.S. District Court for the Eastern District of Louisiana told TPMmuckraker he knew of no such gag order."

David Stechmann, a clerk at Judge Moore's office, confirmed to RAW STORY that the judge hadn't provided any advice or direction "prohibiting O'Keefe from speaking or commenting."

However, the initial Times-Picayune article which broke the arrest noted that Judge "Moore allowed three of the men to stay together Tuesday night, but ordered them to not talk about the case."

In addition, an Associated Press article published Monday, quotes "the front man for the swing band Johnny Angel and the Swinging Demons," who met O'Keefe and two of his alleged co-conspirators, Stan Dai and Joseph Basel, while they stayed with his roommate Ben Wetmore in New Orleans: "They said they couldn't talk about it, that the judge said they couldn't discuss the case."

At his blog, Patterico argues "several leaks from unnamed law enforcement officials sharing otherwise unknown details of the case" are "seemingly a little worse than O’Keefe straightforward Twitter message reporting public news to correct a distortion repeated by several outlets."

RAW STORY has learned that a media outlet has ordered a copy of the transcript from the initial court appearance in order to find out what the judge specifically said.

Conservatives have a long history of bashing the mainstream press, and sometimes they rely on mainstream press accounts to bash other mainstream press accounts.

“The government has now confirmed what has always been clear: No one tried to wiretap or bug Senator Landrieu’s office,” O'Keefe writes in his statement.

In addition, multiple requests for retractions at Breitbart's Big Journalism website claim that "a law enforcement official has conceded that the four men were not attempting to wiretap or intercept calls."

But that confirmation only came from an unnamed law official in an MSNBC post written by NBC's Pete Williams, the same reporter responsible for, as O'Keefe put it, "falsely claim[ing] that I violated a non-existent 'gag order.'”

O'Keefe statement may skirt release agreement

Even if there is no "gag order" or judicial direction to keep quiet, the release O'Keefe signed (posted at Talking Points Memo) may still become an issue when the defendants return to court on February 12.

As commenters at TPM and other online sites have noted, section 7j of O'Keefe's conditions for release states, "The defendant shall: avoid all contact, directly or indirectly, with any persons who are or may become a victim or a potential witness in the subject, investigation or prosecution, including but not limited to," with "unless for business purposes only" added in ink.

O'Keefe's Tweet and statement could be viewed by the court as attempts to influence a potential jury, or even witnesses in the actual case.

Joseph Basel, an alleged co-conspirator can be seen on O'Keefe's Twitter list of "followers" and he Tweeted a link to O'Keefe's statement himself.

Andrew Breitbart, who has admitted paying O'Keefe, also could be called in as a potential witness, or even co-conspirator.

"What he does for the site exclusively is he tells his life rights, basically," Breitbart told conservative radio host Hugh Hewitt, "So when he puts a story out there, it's on the Breitbart sites, the Big sites, that he can tell people what transpired."

There is clearly coordination between O'Keefe and Breitbart, as, along with the statement, his site is filled with multiple articles defending O'Keefe and demanding retractions from the media.

Traditionally, judges don't normally take kindly to lawyers attempting to try their cases in the public, but in this case, the terms of O'Keefe's release could be potentially changed, sending him back to jail.

Lawyer: O'Keefe statement 'unconvincing, incriminating'

At The Reality Check Saturday, Manhattan-based attorney Michael J. Gaynor, in a line-by-line takedown, argued that O'Keefe's "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,'" Gaynor wrote. "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."

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

The lawyer continues, "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)."

"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," Gaynor points out. "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."

Gaynor adds, "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."

"There has been considerable overreach by some media outlets, to be sure," Morrissey wrote at Hot Air.

Morrissey adds,

Some elements of the story have come directly from the report filed by the FBI,- detailing what the witnesses told them about the operation. That information 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.

If the FBI affadavit or the witness testimony is inaccurate, then that will come out in court. However, I doubt that the FBI got the description of their clothing wrong, and 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.

Attorney Michael J. Gaynor concluded, "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."

O'Keefe is reportedly scheduled to make an appearance on Fox News Monday night during Sean Hannity's show. That is, unless his lawyer decides at the last hour that enough is enough, and that risking the judge's ire anymore might not be so wise.

This video is from MSNBC's News Live, courtesy of Media Matters, aired on Jan. 27, 2010.

Download video via RawReplay.com

(David Edwards contributed additional research to this article)