I recently reported that the judge in James O’Keefe’s criminal case ordered the destruction of the footage of James O’Keefe’s entry into Senator Mary Landrieu’s offices. O’Keefe has confirmed on Twitter that the Government returned his recording equipment, but deleted the footage from inside Sen. Landrieu’s offices.
This is especially concerning in light of the recent publication of court documents in which the Government admits that a member of Landrieu’s staff had told O’Keefe’s companions, on tape, that there had been no problem with the phones:
One of Senator Landrieu’s staff members (WITNESS 1) told BASEL and FLANAGAN that she did not report any phone problems and that the office was not experiencing any issues with the phone system.
I’m interested in the First Amendment implications of a court ordering the destruction of a copyrighted work with possible political relevance — with no apparent statutory authority, plea agreement provision, or national security concern to justify it.
I know of no law that justifies destruction of the taped footage. The federal forfeiture statute has no application. It applies only to crimes “punishable by imprisonment for more than one year” — in other words, felonies. Instead, O’Keefe pled to a misdemeanor punishable by a maximum sentence of 6 months. The forfeiture statute does not apply to such misdemeanors, and did not provide the Government with authority to retain the footage.
Surrendering the footage was not part of the plea agreement. You can read the plea agreement here. It contains no provision requiring surrender of the footage.
Finally, there is nothing in the footage that would be dangerous if leaked. O’Keefe has confirmed to me that he and his companions accessed only the public reception area of Landrieu’s office. Any member of the public could walk into the places that they walked. There are no deep dark secrets that the terrorists would learn upon viewing such footage.
In addition to the lack of justification for destroying the footage, we have a positive reason that it should have been turned over long ago: namely, this was potentially exculpatory evidence in O’Keefe’s criminal case. The Government has now admitted, in court documents signed by the Government lawyer, that the evidence shows O’Keefe’s intent was “not to actually tamper with the phone system, or to commit any other felony” but rather “to orchestrate a conversation about phone calls to the Senator’s staff and capture the conversation on video.” This means that the tape recording made by O’Keefe, when viewed in the light of O’Keefe’s history as an undercover video journalist, did not support the Government’s original charge that O’Keefe entered with the intent to commit a felony.
It sure sounds like the tape was exculpatory evidence, which the Constitution requires prosecutors to turn over immediately. Instead, they held on to the tape, and agreed after about two months to reduce the charge to a misdemeanor, which is all they could ever prove anyway.
It seems fairly obvious to me that the First Amendment would prohibit the judge from returning the footage to O’Keefe, and then ordering him not to publish it. Yet he managed to accomplish the same thing in ordering its destruction.
Now, the public will never learn what was on that footage. The footage would have revealed much about the soundness of the Government’s charges against O’Keefe. And, as the Government admits in court documents, it would have shown a member of Sen. Landrieu’s staff denying that there was any problem with the phones.
What possible justification is there for destroying such evidence? Any First Amendment experts want to weigh in?
Plenty more recent news on this story breaking in my ACORN/O’Keefe category.