Attorney general headed down a dangerous road

Note to Attorney General Xavier Becerra: When even the Los Angeles Times, long a supporter of Democrat officeholders and abortion, describes your 15-count felony indictment of David Daleiden and Susan Merritt as a "disturbing overreach," you might want to reconsider your position.

As is by now well known, Daleiden and Merritt conducted a long and elaborate undercover investigation into Planned Parenthood, its affiliates, and its vendors and business customers to determine whether the organization was illegally selling fetal body parts for profit. Federal law — specifically, Section 289g-2 of Title 42 — prohibits the selling of fetal body parts, though it does permit abortion providers to receive reimbursement for actual costs incurred incident to the donation of fetal tissue. Daleiden's investigation yielded stunning evidence of violations of that law, as well as of a related law prohibiting "the alteration of the timing, method, or procedures used to terminate the pregnancy" if done "solely for the purposes of obtaining the tissue."

And contrary to the narrative that has been espoused by Planned Parenthood, the Los Angeles Times, and others, Daleiden's surreptitiously recorded videos depicting admissions of criminal conduct were not "heavily edited." Indeed, the full, unedited videos were posted on Daleiden's website shortly after (and maybe even simultaneously with) the posting of the explosive short versions, which had been edited only for brevity's sake to exclude irrelevant banter and silence, not in any way to alter the substantive admissions of criminal conduct made to Daleiden.

In short, Daleiden's undercover investigation was not unlike numerous others conducted by investigative journalists seeking to uncover fraud, corruption and illegal activity in a range of circumstances. There was the famous expose in 1991 by ABC's "20/20" television show that documented, via a hidden camera, horrendous elder abuse at Texas public and private nursing homes. Or the expose by CBS's "60 Minutes" in which investigative reporter Steve Kroft, posing as a potential investor (much like Daleiden posed as a potential purchaser in this case), uncovered an illegal odometer rollback scheme and documented the illegal activity via hidden cameras. Or the numerous undercover operations by animal rights activists documenting, by use of hidden cameras, illegal abuse of animals in slaughterhouses and other livestock businesses. The Los Angeles Times claimed Daleiden's "methods were decidedly not those employed by respectable reporters," but what these examples reveal is that such methods are, in fact, a tried and true method of serious investigative reporting.

California law makes it illegal to "intentionally" record or eavesdrop on a "confidential communication" "without the consent of all parties" to the communication, and it is that statute, Penal Code Section 632, that Bacerra claims Daleiden violated on 14 separate occasions. There are several significant problems with Bacerra's indictment. First, Section 632 expressly "excludes a communication made in a public gathering ... or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." Daleiden's recordings were made of conversations he had in public restaurants and public hotels, when numerous others were present within earshot. They therefore do not qualify as a "confidentialcommunication" under the statute. (Emphasis added.)

Second, another California law, Penal Code Section 633.5, allows "one party to a confidential communication [to record] the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of ... any felony involving violence against the person, including, but not limited to, human trafficking."

Finally, even if Daleiden's restaurant and conference hotel conversations do not qualify for these exemptions, there are serious First Amendment freedom of the press problems with interpreting the California statute broadly enough to reach such a commonplace method of investigative journalism as occurred here. The courts have frequently noted that restrictions on regular methods of news gathering pose serious First Amendment problems. As the California Supreme Court has itself recognized, "hidden cameras and miniature cordless and directional microphones are powerful investigative tools for newsgathering" even though they may also be used in ways that severely threaten personal privacy. Conversations about the selling of fetal body parts might well be something the perpetrators of that illegal conduct want to keep private, but a matter of such significant public concern is hardly the kind of "personal privacy" intended by the statutory language.

Investigative reporters are rarely forthcoming about their purpose with the subjects of their investigation, with good reason. "Hello, I'm from the television news station and I'm here to document your illegal conduct. Mind if I record?" is not likely to garner an affirmative response. But by targeting with a criminal indictment this particular investigation, which exposed horrendous and quite arguably illegal conduct by a major donor to Democrat party, when other similar investigative reporting efforts have never resulted in such enforcement actions, Attorney General Becerra has demonstrated his willingness to use the criminal law for partisan political ends on a matter of intense public concern. That is a dangerous road to head down.

John C. Eastman Ph.D.is the Henry Salvatori Professor of Law & Community Service and Chapman University's Fowler School of Law and the director of the Claremont Institute's Center for Constitutional Jurisprudence.