Rachel Maddow: Self-incrimination A Potential Problem For 'Gotcha Gang'

Rachel Maddow talks to Jonathan Turley about what factors will determine how severe the punishment could be for James O'Keefe and the others arrested at Sen. Landrieu's office. Turley has more at his blog--Filmmaker O’Keefe Tweets on Pending Charges Despite Reported Gag Order:

It appears that conservative filmmaker James O’Keefe is continuing to comment on his case despite a gag order reportedly in the case. Raw Story and other sites are reporting that O’Keefe tweeted shortly around midnight last night that “Govt official concedes no attempt to wiretap.” It is certainly an important development if true, but O’Keefe may be accused of violating a court order though it could raise constitutional objections from O’Keefe. In the meantime, it appears that the stunt in New Orleans may have been an effort to cut off the telephones as opposed to wiretapping calls. I will be discussing this story tonight on Hardball and later on Rachel Maddow.

As noted in the segment below from Countdown, the affidavit accompanying the charges was curious in two respects. First, the government was charging a higher category of trespass by alleging intent to commit a felony. However, the prosecutors failed to state what that felony was. The clear suggestion of the affidavit was that the “malicious” interference with the telephone system was to wiretap Sen. Mary Landrieu’s office. Second, if this was a conspiracy to wiretap, one would have expected a reference to electronic surveillance equipment found at the scene.

Now, O’Keefe is saying that the government is not pursuing a surveillance theory. Such a development is important and worth public attention. Read on...

As John has already pointed out, this O'Keefe just looks like another future Karl Rove. And the media has gotten the ACORN story completely wrong as was pointed out in this article at the Huffington Post by John Atlas and Peter Dreier--ACORN Is Back in the News, but the News Still Gets it Wrong. Highly recommended reading on the story the media has refused to report and why they've been more than happy to demonize ACORN and how O'Keefe helped to defame them. Sadly because of that whitewashing, the public doesn't even realize what this guy's real track record is and how this latest stunt shouldn't come as much of a surprise to anyone.

He's not a journalist. He's just another up and coming Republican dirty trickster. Given the fact that the GOP doesn't seem bothered by the hypocrisy of hiring ex-felons I doubt this will do much to keep him from receiving some wingnut welfare whether he serves some jail time or not. He's likely got a secure future as either an advisor for a future GOP administration or if nothing else a Fox News 'political analyst'.

Transcript below the fold.

MADDOW: What were four men with ties to conservative organizations doing when they were caught this week in Sen. Mary Landrieu‘s New Orleans office? Today, a lawyer for one of the men said they wanted to record embarrassing hidden camera footage from the office.

The lawyer says that they did not want to wiretap or disable the senator‘s phones. The men are all in their 20s. They are charged with entering federal property under false pretenses for the purposes of committing a felony.

Authorities say two of the men entered the office dressed as telephone repairmen, one of them equipped with a hidden camera, while a third used his cell phone to videotape them in the office. A fourth man waited in the car down the street.

All four face up to 10 years in prison. Despite a reported gag order, the conservative activist made famous for dressing up as a pimp and videotaping ACORN workers, James O‘Keefe, who was the man with the cell phone recording the fake repairmen. He has tweeted about the incident telling Twitter followers that the government, quote, “concedes no attempt to wiretap.”

Joining us is Jonathan Turley, professor of Constitutional Law at George Washington University. Professor Turley, thanks very much for being here.

JONATHAN TURLEY, PROFESSOR OF CONSTITUTIONAL LAW, GEORGE WASHINGTON

UNIVERSITY: Hi, Rachel.

MADDOW: Why is the tweet significant? How could he get in trouble for tweeting about the case if there is a gag order?

TURLEY: 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.

MADDOW: Why is it dangerous?

TURLEY: 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.

MADDOW: On New Year‘s Eve, Mr. O‘Keefe tweeted that something big would happen in 2010. He said, “2008, Planned Parenthood VPs fired. 2009 ACORN defunded. 2010, get ready because this is about to get heavy.”

In terms of things being used in the case against him, could that be significant in this case?

TURLEY: Well, it can. It‘s also significant in the sense that he seems to have been at least hinting and perhaps discussing this operation with other people. And, you know, the charges that were brought against him under Section 1036 - that‘s going into a federal property with the intention to commit a felony - it also alleges malicious interference.

Now, that provision on malicious interference, which is Section 1362, that includes a section on aiding and abetting. And it also allows you to be prosecuted even if you attempt to maliciously interfere with phones.

So it is possible that other people might have been part of a wider conspiracy, had knowledge or supported this activity. Those people should feel very uncomfortable.

MADDOW: In terms of the four that have been charged thus far, does it matter whether they were trying to cut off phones or wiretap them or if they were there to secretly gather embarrassing video?

We‘ve heard a bunch of different potential scenarios for what it was they were doing there. Is there a huge difference between them in terms of their criminal culpability?

TURLEY: It probably is not going to be huge. If they were engaged in surveillance, there is a chance that they could have been facing more than 10 years, particularly if the court applied a consecutive sentence.

But if they‘re just being charged with malicious interference as the felony, plus this entry into federal property, they‘re still looking at 10 years. The question becomes where in that range they‘ll fall.

For Mr. O‘Keefe, he should expect to be the target of this prosecution. And there‘s a lot of aggravating conditions here.

MADDOW: Jonathan Turley, professor of Constitutional Law at George Washington University, thank you for helping us sort this out tonight. It‘s nice to see you.

TURLEY: Thank you, Rachel.

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