The boss is skeptical, as am I. Remember when I said earlier that their defense would likely be that they never really intended to tap any phones but were simply trying to show how easy it would be to do so? Well, er…

An official close to the investigation said one of the four was arrested with a listening device in a car blocks from the senator’s offices. He spoke on condition of anonymity because that information was not included in official arresting documents…

ACORN spokesman Kevin Whelan said the arrest calls O’Keefe’s credibility into question, and used the opportunity to point out that he “edited (ACORN videos) to make things look as bad as possible.” He said, for instance, that O’Keefe actually wore a normal dress shirt when he was in the ACORN offices, but spliced in shots of him dressed as a pimp in the final videos.

O’Keefe, Flanagan, and Basel were all inside the building, according to the FBI affidavit, so the one with the listening device must have been Dai. Hugh Hewitt interviewed Breitbart about the arrests this afternoon, and while AB is crystal clear about that he didn’t know any of the other three men involved or what O’Keefe was up to, it’s less clear what the employment relation between them is.

AB: When the story came to us, what I wanted to do was to make sure that the ACORN story got as much widespread dissemination as humanly possible. The videos that he independently produced went on YouTube. And so Huffington Post, every single site put it out there, including my sites. What he does for the site exclusively is he tells his life rights, basically. So when he puts a story out there, it’s on the Brietbart sites, the Big sites, that he can tell people what transpired. So…

HH: Do you pay him for that?

AB: Yes.

HH: And are you free to tell me how much you pay him?

AB: I’ll…perhaps at another date, but he’s paid a fair salary.

HH: Is he…so he is an employee?

AB: I’m not sure that’s technically the thing, but yes, he’s paid for his life rights. And he’s, you know, he’s still…we reserve the right to say yes or no to any of the stories that he puts up on our site as we do to any other contributor who comes to the site.

It sounds like he’s an independent contractor, not an employee. Any criminal lawyers want to weigh in on whether and how employment status might affect potential criminal liability? Anyone? Patterico? Bueller?

Update: Re: the “listening device,” it’s possible that it was linked up to a mic on O’Keefe or one of the two fake repairmen, not to some bug that was meant to be planted in Landrieu’s phone. But it’s potentially important evidence, needless to say.