Ideal clients and ideal political opponents share an important quality: they'll shut up if you tell them to.
James O'Keefe and Nadia Naffe are not ideal clients, and political blogger Patterico is not an ideal political opponent.
Who are these people?
Well, no doubt you've heard of James O'Keefe, a conservative activist who seems to have embarked on a skit-based journalism career. His pimp-visits-ACORN routine led to political upheaval and a lawsuit which I wrote about in 2009. Another caper led to a misdemeanor conviction.
Nadia Naffe is a young conservative activist who once worked with O'Keefe, and is now publicly accusing him of a scheme to assault her sexually. A judge previously dismissed her harassment claim against O'Keefe for insufficient evidence, and even sources that would normally report any allegation against O'Keefe with unmitigated glee are treating her with suspicion, though that may be based more on her conservative background than on a sober evaluation of facts. Her diction and demeanor give us a glimpse of what it would be like if Gawker Media hired a lolcat.
Patterico is a political blogger and, in his day job, a Deputy District Attorney in Los Angeles County. Patterico is substantially to the right of me, and we probably disagree more than we agree; however, I see him as someone who calls them as he sees them and does an admirable job of avoiding "my side, right or wrong" mentality. His site is well worth reading.
What do these people have to do with shutting up?
Well, first, O'Keefe and Naffe are classic examples of nightmare clients. They are embroiled in litigation or threatening litigation and yet will not shut the fuck up. Here's the thing — unless your attorney is a partner in a Kardashian-inspired approach to litigation and is helping you use the court system to get publicity, any competent attorney will tell you that you need to shut up about the subject of your lawsuits, criminal investigations, and prosecutions. Anything less makes your case vastly more difficult to litigate. O'Keefe is suing media outlets for harming his reputation by falsely reporting (maliciously or incompetently) that he had been convicted of a felony, but won't shut up about it. The result is a wealth of statements that any competent lawyer will use to impeach him and tear apart his argument that his reputation has been damaged by the media. Similarly, Naffe would clearly like to sue O'Keefe, but her antics have rendered any case very probably unwinnable by offering a wealth of impeaching statements and rhetoric that puts her motives in the worst light possible. The result — both have created an appearance that they view litigation as politics by other means, not as a way of resolving genuine disputes. Lawyers hate clients like that.
Moreover, Naffe might well be not-shutting-up her way into trouble. A significant part of her story involves documents she apparently downloaded when she got access to O'Keefe's email. One hopes that she has an attorney advising her, and that the attorney is familiar with the federal computer fraud statute, 18 U.S.C. section 1030, which makes it a federal crime to do the following:
. . . .
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
. . . .
(C) information from any protected computer [a term including any computer or mobile device "which is used in or affecting interstate or foreign commerce or communication,"];
. . .
. . .
(7) with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any—
. . .
(B) threat to obtain information from a protected computer without authorization or in excess of authorization or to impair the confidentiality of information obtained from a protected computer without authorization or by exceeding authorized access;
. . .
Second: Nadia Naffe and her political allies very much want Patterico to shut up about her allegations against O'Keefe, and they are willing to threaten him to shut him up.
See, when Naffe released her (to date) two-part series accusing O'Keefe publicly, Patterico offered some skeptical questions, the sort of questions that one might ask in written discovery or in a deposition or on cross-examination. The next day he offered still more. Some of the questions are about the circumstances of the incident Naffe describes; others are about her political biases. Many are questions that any good attorney would ask in evaluating her claims. The defense attorney in me is tempted to say that this is the most thorough consideration of exculpatory evidence that I have ever seen from a Los Angeles County Deputy District Attorney, but that would be uncouth, so I will not, and you should definitely forget that I brought it up.
Naffe and her allies did not refute Patterico's bullet points or explain why they did not detract from her case or credibility. Rather, they turned to threats.
Naffe has now locked down her twitter account. Before she did, though, she indicated that she was reporting Patterico to "Internal Affairs" at the DA's Office. She suggested that he had done wrong by (1) writing posts that amounted to "legal advice" to O'Keefe, (2) writing posts that amounted to "interfering in civil matters," and (3) posting on a private blog during work hours.
As to the third part, her claim appears to be ass-damp speculation. Anyone with a blog knows that when you write and when you publish can be two very different times; I routinely write before or after work and set posts to publish during the day, or give posts a last read-through during a break and publish then. Patterico is an old hand at this, used to feckless bullying by political opponents, and I would be surprised if he's not very careful about his on-the-clock behavior.
Her other two claims are simply ridiculous. Naffe released assertions publicly in a clear bid for publicity. The notion that a blogger who happens to be a lawyer can't comment on her claims without straying into "legal advice" to a party is ludicrous. Such a wide interpretation of ethical rules would not survive First Amendment scrutiny. Similarly, the notion that an attorney is "interfering" in a public civil matter by commenting upon it is fatuous. Naffe and her hangers-on will not be producing any authority supporting their arguments, because (1) it doesn't exist and (2) they aren't capable of finding it if it did exist.
But Naffe and her supporters aren't relying upon the legal force of their arguments. They are relying upon openly censorious thuggery — on politics by other means. Misconduct allegations against an attorney — even when they are sub-literate and specious — are embarrassing, inconvenient, and annoying. That's the point of the tweet pictured above, and of Naffe's celebrations of censorship-by-complaint. Naffe and her supporters do not seek to persuade, or to prove their cause is right — they intend to make frivolous complaints to a public entity in hopes of silencing a critic. For this, they deserve our contempt.
I have no idea what really happened between O'Keefe and Naffe. On the one hand, I find O'Keefe to be skin-crawlingly creepy and would not let him near my daughters unless I had a Mossberg Persuader pointed at his junk. On the other hand, Naffe seems like an unbalanced publicity-seeker. I'm not interested in being the one who sorts out what happened. I am, however, interested in freedom of expression. By that metric, right now Naffe and her pals are coming off as the clear villains of this exchange.
Edited again: An apt illustration of the sort of sub-normal censorious asshattery that Naffe has in her corner:
You can’t hide behind journalism or free speech, because you are NOT a journalist. You are a THUG and a DISGRACE to the community and state of California. And we are going to make an example out of you for all to see. And that example is your THUGGISH behavior, your outright OUTRAGEOUS conduct towards women, other races, other religions, and other cultures. You are an avowed racist, and you attack and or support others who go out and attack people without provocation. And we will dedicate our time, effort, and money to root out your THUGGISH ways. And will campaign to have you called on the carpet for every attack on others you promote. And you can take that to the bank and cash it you despicable low rent thug.
I'm pretty sure this blogger is immune to an equally censorious response, because he doesn't have a job, or the folks at the place he cleans toilets on the night shift don't care.
Last 5 posts by Ken White
- Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier - May 3rd, 2016
- Bleg: External Storage Devices For iOS? Wireless or not. - May 2nd, 2016
- How To Write (Or Solicit) A Good Letter Supporting A Defendant At Sentencing - April 29th, 2016
- Marc Randazza Wrote An Amicus Brief About Klingon, And It's Magnificent - April 28th, 2016
- Regarding That Oklahoma Rape Decision You're Outraged About - April 28th, 2016