The Corner

Law & the Courts

Prosecuting Journalism Is Worse Than Chanting “Lock Her Up”

As Alexandra notes below, buried beneath the news of this week’s Democratic Convention, the Harris County, Texas District Attorney’s Office has dismissed all charges against David Daleiden and Sandra Merritt over the investigation of Planned Parenthood. While liberal commentators across the country hit the fainting couches last week over Republicans chanting “Lock Her Up,” the now-abandoned Daleiden prosecution was and is a far greater menace to free society.

To review, ​Daleiden’s undercover investigation showed (among other things) Planned Parenthood executives and employees discussing the sale of organs from aborted unborn babies. Amidst calls for investigations of Planned Parenthood (some of which revealed violations of state law in various states), allies of the organization in the District Attorney’s Office in Houston decided instead to investigate the journalists and ignore Planned Parenthood. As LifeNews explains, there was a long track record of close cooperation between Planned Parenthood and the D.A., and of the D.A.’s biases in favor of abortionists:

According to attorney for Daleiden, District Attorney Devon Anderson shared confidential information with the abortion business, which she was supposed to be investigating for running afoul of state laws prohibiting the purchase or sale of body parts form aborted babies.

…[I]n recent court filings by the Harris County District Attorney’s Office, Planned Parenthood Gulf Coast’s attorney Josh Schaffer admitted in a sworn declaration that the Harris County DA’s office shared evidence with Planned Parenthood. That occurred even after the Texas Attorney General’s office had forbidden Anderson’s office from doing so.

The declaration was included as part of the DA office’s response to David Daleiden’s motion to quash the indictment against him, alleging prosecutorial misconduct.

Under oath, Schaffer, the Planned Parenthood attorney, admitted that he and Assistant District Attorney Sunni Mitchell attempted to do an end-run around the Texas Attorney General’s directive to Mitchell not to share raw video footage with Planned Parenthood: “I was told that the Attorney General’s Office agreed to give it to the HCDAO on the condition that the HCDAO not give it to PPGC. Mitchell told me that she would try to obtain the footage by other means.”

The indictment against Daleiden and Merritt charged them with (1) “tampering with a governmental record” for using a fake I.D. to get into Planned Parenthood and – even more preposterously – (2) trying to buy organs, even though the D.A. never charged the sellers of the organs, who unlike Daleiden were deadly serious and not just doing journalism. A court had already thrown out the organ-buying charge for failing to allege elements of the indictment, and the D.A. now implicitly concedes that prosecuting an undercover journalist for using a fake I.D. was a bad idea.

For all the ink spilled over the “lock her up” chants (repeated yesterday by Bernie Sanders supporters), they didn’t originate from political disagreements or even, as with Rick Perry’s bogus indictment, from separation of powers disputes; they arose from the head of the F.B.I. laying out facts that showed that Hillary Clinton disregarded the law in ways that put sensitive national security information at risk. James Comey concluded that those facts should not lead to a prosecution, but citizens and public officials are more than justified in reaching the opposite conclusion, especially given the gross negligence standard in the statute. Nobody really disputed that the criminal statute under which Secretary Clinton was investigated exists for legitimate reasons and would be a valid basis for prosecuting even high government officials for mishandling state secrets.

By contrast, the idea of prosecuting journalists for using a fake I.D. to gather undercover video is obviously dangerous – and it could not have been clearer from the context that a liberal journalist would not have been indicted under the same circumstances, while the target of the expose was let free (how many times has “60 Minutes” been indicted?). The ultimate dismissal of the indictment is cold comfort after Daleiden and Merritt were dragged through the criminal process for no offense worse than seeking to bring facts to light. If American liberals were truly liberal, they’d rise in protest against this sort of thing, rather than gleefully using it as a smoke screen to distract from the videos themselves.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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