While the indictment of David Daleiden has importance politically, at the end of the day it simply reinforces my belief that we ought to do away with the antiquated Grand Jury system.
The most important thing to come out of the Grand Jury process is that Planned Parenthood has been cleared of any wrongdoing in Texas – just as they have in every other state where Republican lawmakers have attempted to criminalize political disputes over abortion – after Mr. Daleiden accused Planned Parenthood of illegally profiting from the sale of fetal tissue.
As we reported yesterday, in this sense, the indictment was a clear miscalculation and backfire for Lt. Governor Dan Patrick, who, among others, called for a criminal investigation into Planned Parenthood. Instead, the Grand Jury believes it found criminal conduct on the part of the anti-abortion activist rather than the organization he was investigating.
The New York Times notes that 12 states have investigated Planned Parenthood and all have cleared them. Eight other states declined to investigate the group at all.
They write, “In the Republican-led Congress, Speaker John A. Boehner resigned last fall rather than lead a government shutdown to force an end to federal funds for Planned Parenthood. Conservatives’ efforts to defund the group have since failed. Senate leaders increasingly fear that the fight threatens several Republican seats, and with them the party’s majority. Several congressional committees investigating the organization have yet to produce results.”
However, just as I believe that Republicans overstepped their bounds attempting to trump up criminal charges here against Planned Parenthood, I think charging Mr. Daleiden for his actions is problematic.
Mr. Daleiden, in his making of the videos, set up a fake company called Biomax Procurement Services and created fake identities to pose as legitimate providers of fetal tissue to researchers. This is a common tactic for a journalistic investigation.
Mr Daleiden probably went too far when he created fake IDs that actually resembled California driver’s licenses.
However, Mr. Daledien is also charged with a misdemeanor for violating the law that prohibits people from attempting to buy fetal tissue. He set up a meeting in April with Planned Parenthood officials in Houston, offering to buy fetal tissue for $1,600 per sample.
But here’s the problem – Planned Parenthood never responded to the offer and Mr. Daleiden will undoubtedly argue that it was not his intention to buy the tissue, rather he was attempting to confirm that the organization was engaging in illegal acts.
This undoubtedly raises legal issues. Many journalists in legitimate investigative reporting will set up stings such as the one that Mr. Daleiden attempted to perpetrate. Legal analysts suggest that, while the purpose of whistleblowing wrongdoing may not be a legal defense, it would at least be a mitigating factor in reducing any penalties.
Mr. Daleiden, for his part, argued that he used the “same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press, and follows all applicable laws.”
George Washington University Law School Professor Jonathan Turley writes, “The difficulty for Daleiden and the Center is that, as we have previously discussed, the media has faced liability over the years for such techniques. Courts have held that journalistic privilege does not insulate media from such torts and crimes as trespass, though it can have an impact on the level of damages allowed.”
What I see as a bigger problem for Mr. Daleiden is the lawsuit filed by Planned Parenthood, which alleges that Mr. Daleiden and company engaged in fraud and misrepresentation when he set up meetings and recorded conversations. Moreover, the fact that Planned Parenthood has been exonerated on the selling of human tissue charges leaves him very vulnerable to defamation. The suit has been filed on a series of complaints related to wire and mail fraud, as well as charges ranging from invasion of privacy to illegal secret recording and trespassing.
While the one charge seems problematic, the false IDs are a more serious legal problem because they can be viewed as tampering with a governmental record – which can be charged as a felony rather than a misdemeanor.
It is a crime under the provision if a person “makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record.”
Still, we are talking about a fairly minor crime for someone attempting to engage, not in criminal activities, but in public advocacy. We may disagree with the direction and tactics of that public advocacy, but I am less than comfortable moving this from the political realm to the criminal arena.
To me this is a political issue through and through, and the Republicans end up on the losing end of this. The Times reports, “Party strategists worry that such attacks will backfire with the general electorate in November, especially among women, younger voters and political independents.”
“In the last several elections, the Democratic playbook has been to discuss the ‘war on women’ narrative” against Republicans, said Brian Walsh, a Republican consultant and former adviser to House and Senate leaders.
The Times notes, “Karl Rove, a Republican strategist and a former top adviser to President George W. Bush, has called proponents of shutting down the government to defund Planned Parenthood the ‘suicide caucus’; party leaders are well aware that Republican attacks on the organization back to the Clinton era have not ended well for Republicans.”
Polling backs up these concerns: “A majority of Americans continue to support Planned Parenthood and its federal payments, which reimburse nearly 700 affiliates for providing reproductive care, preventive health services and treatment of sexually transmitted diseases to low-income Medicaid recipients.” Federally-funded abortions are prohibited by federal law except in extreme cases.
The Times adds, “A survey for The New York Times and CBS News this month showed that nearly six in 10 Americans say Planned Parenthood should receive federal funds. That finding was statistically unchanged from a similar survey in September, even as conservatives at the local, state and federal levels stoked outrage about the videos from a group called the Center for Medical Progress, founded by a 27-year-old Californian, David R. Daleiden, one of those indicted Monday.”
Bottom line: let this play out in the political arena. Criminalizing advocacy is a dangerous game and unnecessary here.
—David M. Greenwald reporting