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. The AP is now catching up to the story:
Conservative activist-videographer James O’Keefe said video he shot of conversations with staffers of U.S. Sen. Mary Landrieu was deleted when his cell phone was returned after he and three others pleaded guilty to charges in a caper he orchestrated at the Democrat’s New Orleans office.
A spokeswoman for the U.S. attorney’s office said Saturday that U.S. Magistrate Daniel Knowles III ordered the footage removed. O’Keefe made the claim Friday in a posting on his Twitter social networking site.
What the AP overlooks, however, is what the destroyed footage would have revealed.
I recently published court documents in which the Government admitted that a member of Landrieu’s staff had told O’Keefe’s companions, on tape, that there had been no problem with Senator Landrieu’s 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 justification for the destruction of the taped footage. A defendant’s property can be forfeited under certain circumstances — if he commits a felony. O’Keefe pled to a misdemeanor. Surrendering the footage was not part of the plea agreement, which you can read here. Nor is there any national security issue in play; O’Keefe has confirmed to me that he and his companions accessed only the public reception area of Landrieu’s office.
In addition, the footage was potentially exculpatory evidence in O’Keefe’s criminal case, and as such should have been turned over immediately after his arrest. The Government has admitted, in court documents signed by the Government lawyer, that 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 was exculpatory evidence, which would have helped him prove the lack of intent that the Government eventually admitted.
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, including what it revealed about the weakness of the Government’s charges against O’Keefe — and possibly about Sen. Landrieu’s having dissembled about the state of her “jammed” phone lines.
What possible justification is there for destroying such evidence?