This week brings the astonishing news that a grand jury in Harris County, Texas, empaneled to investigate criminal wrongdoing by Planned Parenthood, determined after a painstaking two-month review that the only indictments warranted in this case were to be directed at the two anti-abortion activists who filmed and released a series of sting videos. The Harris County district attorney, announced the surprise indictments against the Center for Medical Progress’ David Daleiden and Sandra Merritt for the felony of tampering with a governmental record; Daleiden received a second indictment for the misdemeanor prohibition on the purchase of human body parts. But if you’ve been following Daleiden’s recent legal woes, this is less surprising than more of the same.
The Texas indictments spring from a series of now-infamous undercover videos created by the Center for Medical Progress, which created a fake company, BioMax, and had employees pose as prospective buyers of fetal tissue. CMP engineered the three-year sting project to support their claim that Planned Parenthood was making a profit from selling fetal tissue. Planned Parenthood always contended that it did not profit from the sale of fetal tissue and only recouped the costs of donation. Planned Parenthood announced last October that it would stop accepting even reimbursements for the cost of supplying fetal tissue for medical research.
Despite the fact that 11 investigations by various states have cleared Planned Parenthood of wrongdoing, the release of the videos has emboldened efforts by state lawmakers around the country to try to shut down the organization by attempting to cut off funding for local Planned Parenthood clinics, as well as triggered three congressional committee investigations, multiple congressional hearings, and intense public fever-dreaming by GOP nominees. It has also inspired a massive surge of violence toward Planned Parenthood clinics and abortion providers. In November, Robert Lewis Dear shot and killed three people at a clinic in Colorado, saying “no more baby parts” to the officers who arrested him. Just this month Dear further explained to the media: “I picked Planned Parenthood because it’s murdering little babies.”
The CMP videos are a carnival of truthiness, cutting and pasting highly edited footage, interspersed with images, including that of a stillborn child Daleiden admits he found online, purporting to be an aborted Planned Parenthood fetus of the same age. But Daleiden insists that his filmmaking represents protected First Amendment activity (journalism even!), and Fox News certainly seems to agree: Tuesday morning on Fox & Friends Steve Doocy claimed that “journalists use the techniques every day,” citing 60 Minutes and 20/20.
According to the Harris County District Clerk’s website, a warrant for Daleiden was issued Monday evening. He seems to invite such lawsuits. Earlier this month, when the news broke that Daleiden, CMP, and BioMax were being sued by Planned Parenthood in a federal civil lawsuit alleging that Daleiden broke state and federal law by creating false identities, practicing mail and wire fraud, and violating confidentiality and nondisclosure agreements, including alleged Racketeer Influenced and Corrupt Organizations Act violations, among other things, he crowed to the Associated Press that he looked forward to confronting Planned Parenthood in court. “Game on,” he later said in a statement. “I look forward to deposing all the CEOs, medical directors, and their co-conspirators who participated in Planned Parenthood’s illegal baby body parts racket.”
But this is only part of the story. Two other, earlier lawsuits have been filed against CMP and Daleiden. StemExpress, one of the companies that works with Planned Parenthood, filed a suit in state court last summer, and yet another lawsuit has also been percolating almost from the beginning of the CMP train wreck. Last July, the National Abortion Federation sued Daleiden and his group for breach of confidentiality and invasion of privacy. While the NAF suit hasn’t garnered as many headlines, it sued CMP and Daleiden in a California federal court, seeking to have CMP be preliminarily and permanently enjoined from publishing any recordings or confidential information from any NAF annual meetings.
According to the NAF pleadings, employees affiliated with CMP posed as a biotech company to gain access to the organization’s 2014 annual meeting in San Francisco and its 2015 annual meeting in Baltimore. They registered using fake driver’s licenses, and they signed forms agreeing not to videotape the meetings, agreements that CMP never intended to honor. Because it’s illegal in California to record or eavesdrop on confidential communication without the consent of all parties, CMP is potentially on the hook for treble damages for the recordings they made.
Judge William Orrick of the U.S. District Court of Northern California has dealt several blows to CMS, including a temporary injunction last August, barring CMP from releasing any additional footage CMP obtained at NAF meetings, and an order that CMP and Daleiden respond to NAF’s discovery requests. That was followed by a ruling last September denying CMP and BioMax’s claims that as corporate defendants they should be allowed to plead the Fifth in order to dodge NAF’s discovery requests. As Imani Gandy at RH Reality Check has painstakingly chronicled, Daleiden’s efforts to avoid discovery have been mostly unsuccessful. And the NAF has largely blocked the publication of footage recorded at NAF’s private events. Despite the injunction, a conservative news site published the enjoined videos last October, claiming they got them from an anonymous congressional staffer who had access to them as a result of the ongoing congressional investigation. Following that leak, Judge Orrick granted NAF’s request that Daleiden provide “all originals and copies of material covered by the [restraining order] to outside counsel for CMP for safekeeping.” Orrick also ordered CMP to disclose the names of individuals and organizations that knew about the unpublished NAF footage. Daleiden said that this was the same group of people who supported CMP and it violates his First Amendment rights to demand to know who they are.
Last November, Orrick rejected Daleiden’s First Amendment arguments against disclosing the list, and the 9th U.S. Circuit Court of Appeals refused to disturb that ruling, which is why the NAF suit had a brief dramatic turn at the U.S. Supreme Court in early December when the high court was asked by CMP to block Orrick’s order to turn over the names of supporters. Justice Anthony Kennedy, who oversees the 9th Circuit, refused to do so.
CMP and its lawyers contend that the fraudulent contracts they signed don’t trump his First Amendment rights as an investigative journalist and that such deception is necessary to penetrate “the cloak of secrecy that often conceals matters of grave importance.” Daleiden this week even sought to put some of his unpublished videotape evidence before the Supreme Court in its upcoming blockbuster case, Whole Woman’s Health v. Cole. It seems an understatement to suggest that so far he is faring rather poorly in his various lawsuits, especially against the NAF.
This, perhaps, is a point worth highlighting: A Republican district attorney was appointed by a Republican lieutenant governor to unearth criminal dirt on Planned Parenthood and instead indicted the videographers. The law is—we forget—different from politics, and even as politics becomes ever more a fact-free enterprise, the law is not. The grand jury followed the facts. They determined that Daleiden is the lawbreaker. Don’t expect miracles. The same people who know what they know and saw what they saw in the Planned Parenthood videos that screen in their heads will remain unmoved by reality or truth. But score this one for fact-finding and fact-finders everywhere. Sometimes the truth really does win out.
Finally, it’s hard to avoid observing that all of the new CMP drama is unfolding in Texas, just as the Supreme Court prepares to hear the biggest abortion case in years, from Texas. It’s never clear how much current events of this kind impact the justices’ thinking, but it’s difficult even for justices to avoid the fact that after myriad exacting investigations, hearings, and searches, the only criminal conduct allegedly connected to Planned Parenthood is now affixed to the people who attempted to smear them. It may not make any one justice any more receptive to the argument that abortion is still legal and still necessary. But it may make them slightly less apt to be manipulated by claims that the end will always justify the means. At least as a legal tactic, that seems to be a perennially losing strategy.