The Center for Medical Progress’ (CMP) legal troubles in connection with its heavily edited undercover videos are not going to abate any time soon.
Lawyers for the National Abortion Federation (NAF) filed two whopping motions on November 13 against the anti-choice front group and its leader, David Daleiden. One asked United States District Court Judge William Orrick to convert into a preliminary injunction the temporary restraining order (TRO) blocking CMP and Daleiden from releasing additional footage or other materials that NAF alleges the anti-choice group fraudulently acquired.
The other asked Judge Orrick to punish Daleiden and CMP for their overbroad disclosure to Congress in response to a congressional subpoena issued by Rep. Jason Chaffetz, head of the House Oversight and Government Reform Committee.
Chaffetz issued the subpoena after a five-and-a-half hour hearing, during which he and other Republican committee members asked Planned Parenthood Federation of America President Cecile Richards to testify on a wide variety of topics, few of which had anything to do with the organization’s fetal tissue donation program. It asks for the unedited video footage related to the “acquisition, preparation, and sale of fetal tissue” that Daleiden and his associates recorded at NAF’s 2014 and 2015 meetings.
Daleiden has been eager to cooperate with state and federal officials who are investigating Planned Parenthood’s now-defunct fetal tissue donation program. A few weeks after Judge Orrick issued a TRO preventing Daleiden and CMP from publishing additional video footage of the NAF meetings, the anti-choice group asked Judge Orrick to clarify that the TRO does not prohibit it from “producing information in response to investigative subpoenas or other requests for information issued to Defendants by government officials conducting official proceedings.” Daleiden and CMP wanted to provide footage covered by the TRO to the attorneys general of Alabama, Arizona, Michigan, and Oklahoma, though Planned Parenthood does not have fetal tissue donation programs in those states.
NAF countered that CMP and Daleiden should not be given carte blanche to disclose confidential information, and that they should be permitted to disclose information only if the disclosure was in response to a lawful subpoena, such as Chaffetz’s. Undergirding all of NAF’s arguments in court is the concern that further disclosures will simply lead to more harassment and intimidation of its members, including Planned Parenthood affiliates.
After Daleiden received the congressional subpoena, his lawyers informed Judge Orrick that Daleiden would comply with the subpoena unless instructed otherwise by the court.
But CMP had not yet provided complete responses to NAF’s discovery requests.
For the past several months, NAF has been gathering information through a legal vehicle known as discovery in order to make its case in court for an injunction. One key category is the names and identities of the people who received a report that CMP has said it distributed regarding its activities at NAF’s meetings, along with the names and identities of the CMP agents who infiltrated NAF’s meetings in 2014 and 2015.
CMP and Daleiden have refused to provide the information, offering myriad reasons for nondisclosure. Daleiden argued that disclosure would implicate his constitutional right to associational privacy and his Fifth Amendment right against self-incrimination. He also argued that identifying his cohorts would violate their Fifth Amendment rights.
Orrick has rejected each of these: Corporations don’t have Fifth Amendment rights so CMP can’t plead them, Fifth Amendment rights are personal and Daleiden cannot assert them on behalf of his cohorts, and none of the information would subject Daleiden to any further criminal liability, so Daleiden cannot hide behind the Fifth Amendment to avoid disclosing the actual names of his associates.
Orrick ordered CMP and Daleiden to disclose the information. CMP and Daleiden asked Orrick to reconsider his ruling. Orrick obliged and last Friday, ruled against CMP and Daleiden again. “Daleiden, it appears, is attempting to hide the ball, contrary to my prior Orders,” Orrick wrote. “It’s time to end this shell game.”
The fact that Daleiden and CMP have tried to avoid providing to NAF the very information that they were eager to provide to Congress and other government officials was apparent to Judge Orrick.
“[I]t is not lost on me that defendants seek expeditiously to provide information to Congress that they have tried in a variety of ways not to provide to NAF,” Orrick wrote in an order issued on October 6.
Accordingly, Judge Orrick ordered CMP to deliver to NAF’s counsel a copy of everything it intended to provide to Congress in response to Chaffetz’s subpoena and forbade the anti-choice front group from turning over any documents or video footage that Congress did not specifically ask for.
“CMP shall not provide to Congress any footage, documents or communications that have not been specifically requested by the subpoena,” Orrick wrote.
But CMP did not limit its congressional disclosure the information requested. It gave the committee 504 hours of video and audio footage as well as hundreds of documents, even though, according to NAF, more than half of the information turned over had nothing whatsoever to do with Planned Parenthood’s legal fetal tissue donation program.
“CMP turned over all 504 hours of video and audio footage illegally taken at NAF’s meetings, as well as hundreds of documents obtained at those meetings—most of which have nothing to do with the ‘acquisition, preparation, and sale of fetal tissue’,” NAF wrote in its brief asking for sanctions.
For example, some of the materials Daleiden turned over to Congress relate to the reproductive health-care needs of transgender patients.
What’s more, NAF contended Daleiden conspired with his “great friend,” and “Internet troll” Charles C. Johnson to release to the public that very same footage, using the disclosure to Congress as a smokescreen.
NAF noted that Johnson initially claimed on his blog that he received the footage from a “congressional staffer,” but that Johnson later changed his story and told the Washington Post that he received the footage from an anonymous tipster named “patriotgeist.” Patriotgeist did not identify himself as being from Congress, according to Johnson’s revised story.
Because of this conflicting story, NAF speculated, “Daleiden forced the overbroad disclosure to Congress and then used it as a smoke screen in order to pass the same materials to Johnson, an individual notorious for publishing on the Internet intimate, private details of people’s lives (including, to take one of many abhorrent examples, the names and pictures of rape victims).”
NAF wrote that it intended to probe the veracity of Johnson’s story at his deposition, which was scheduled to take place last week.
NAF requested various forms of sanctions, including that Daleiden and CMP should be required to pay monetary sanctions sufficient to ensure Daleiden and CMP’s compliance with the TRO. NAF also asked that Daleiden and CMP be required to reimburse NAF for the attorneys’ fees and costs expended in connection with drafting, filing, and arguing in court its motion for contempt. Orrick has not yet given an indication of when he will rule on the motions.