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Why The Real Scandal Isn’t Congressman Vance McAllister’s Philandering

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Today, the nation learned that freshman Congressman Vance McAllister (R- Duck Dynasty) is, in fact, a quack. Last November, McAllister stunned the Louisiana political commentariat and soundly defeated State Senator Neil Riser, a victory that many attribute to the support he received from Phil and Willie Robertson from the hit reality television show “Duck Dynasty.” McAllister, who ran on a family values platform, emphasizing his Christian faith and his disdain for Washington politicians, was caught, on camera, cheating on his wife with one of his staffers, a woman named Melissa Peacock.

Mrs. Peacock and her husband Heath were close friends of the McAllister family and major donors to his campaign. Recently, according to my sources, both the Congressman and his wife posted comments on Mrs. Peacock’s Facebook account, which has now been deleted.

Melissa Peacock, Source: Facebook

Melissa Peacock, Source: Facebook

At first blush, this may seem like yet another story about a hypocritical politician, and no doubt, Congressman McAllister is a hypocrite. If he truly cared about his family, he would have resigned already. Instead, taking a page out of David Vitter’s playbook, he issued a hastily worded and tone deaf mea culpa, reminding voters that he was elected to be a different kind of politician and then asking for the media to respect his privacy, using his children as cover. Quoting:

“There’s no doubt I’ve fallen short and I’m asking for forgiveness. I’m asking for forgiveness from God, my wife, my kids, my staff, and my constituents who elected me to serve. Trust is something I know has to be earned whether your (sic) a husband, a father, or a congressman. I promise to do everything I can to earn back the trust of everyone I’ve disappointed.”

From day one, I’ve always tried to be an honest man. I ran for congress to make a difference and not to just be another politician. I don’t want to make a political statement on this, I would just simply like to say that I’m very sorry for what I’ve done. While I realize I serve the public, I would appreciate the privacy given to my children as we get through this.”

vance_mcallister_duck_dynasty_twitter_605

But while the national media gawks over the lurid details and focuses on Congressman McAllister’s rank hypocrisy, they’re missing the real scandal here: Who leaked the video, and was this leak purposely timed? After all, this video was recorded nearly four months ago, from inside the Congressman’s own district office.

To borrow a horror movie cliche, the call was coming from inside the house.

*****

The story was first broken at 12:19PM by The Ouachita Citizen, a fledgling website that claims to have a paid readership of more than 5,200 people but, based on third-party web traffic analytical data, likely has a daily audience of between 200-300 unique visitors. An hour and a half later, the story was on the front page of Politico. An hour later, it was covered by almost every national news outlet in the United States- Fox, CBS, The Washington Post, NBC.

With all due respect to John Bresnahan and Jake Sherman, the two Politico journalists who broke the story nationally, it defies logic that they somehow randomly stumbled on a story published on a website that even most Louisianians have never heard of and verified the authenticity and provenance of a blurry surveillance video (which, by the way, was behind a paywall) all within a span of 90 minutes. No, this leak was coordinated and planned, and more than likely, considering it was recorded nearly four months ago, it had been in the works for a long time.

Notably, The Ouachita Citizen strongly supported State Senator Neil Riser, calling Mr. McAllister a “liberal” in a bizarre, apoplectic rant, which, ostensibly was an endorsement of Riser but reads more like a scathing attack against McAllister for supporting Medicaid expansion under the Affordable Care Act. In its report on the McAllister video, The Ouachita Citizen claims to have received the video from an “anonymous” source, but somehow, inexplicably, they were able to verify the video’s provenance. The Ouachita Citizen, in my opinion, bordered on recklessness in their reporting, publishing Mrs. Peacock’s home address and implying, without any evidence whatsoever, that she may have never actually married her own husband. It seemed, to me, nasty and personal, motivated by more than a mere desire to inform the public.

State Senator Neil Riser

State Senator Neil Riser

Perhaps not surprisingly, only a couple of months before their endorsement, Neil Riser spent $1,500 to advertise in The Ouachita Citizen.

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To quote LSU Professor Bob Mann, “In between bouts of groveling for forgiveness, if I were Vance McAllister I’d be demanding the FBI find who leaked that video.”

As egregious as some may find Congressman McAllister’s behavior, if, in fact, his relationship with Mrs. Peacock was consensual and not coerced in any way and if Mrs. Peacock was being fairly compensated for her actual work and not simply for her services as the Congressman’s paramour, then neither of them broke the law.

However, as James O’Keefe can attest, there are laws that expressly prohibit bugging federal offices, and recording surveillance footage from a federal office- without consent; it is a felony. There are no “whistleblower” protections for someone who sneaks into a federal office, uses their cell phone to surreptitiously record surveillance footage of a man and a woman kissing, and then leaks that footage to the state and national media. The person who leaked this footage may believe they were performing a public service- exposing a Congressman as an adulterer and a phony, but in so doing, they also compromised the security of a federal office and placed federal employees in potential danger. Now, the entire world knows the locations of security cameras in the Congressman’s office; they know where the blind spots are, and they know the lag between those cameras and the blind spots.

Congressman McAllister’s constituents may be outraged by his infidelity, but the country should be more concerned that someone with a cell phone camera walked into a federal office, turned off the lights, and recorded the office’s security terminal. Adultery may be a sin, but it’s not a crime. This, however, is a crime, and considering that, in recent years, members of Congress have been threatened by letters containing ricin and anthrax and that Representative Gabrielle Giffords was nearly slain by an assassin’s bullet, it should be taken very seriously.

*****

There are other, important reasons the public and the media should be concerned and suspicious about the timing and the purpose of this video.

After Vance McAllister was elected, he didn’t set up shop in a new office, though he could have. Instead, he assumed Congressman Rodney Alexander’s lease; this was Congressman Alexander’s office, and unless someone replaced all of the surveillance cameras immediately after Vance McAllister was sworn in (only a month before the footage was recorded), this was Congressman Alexander’s security system.

To be clear, I have absolutely no reason to believe that Congressman Alexander himself is in any way connected with the release of this video. With all due respect to the former Congressman, I doubt he possesses the technological savvy or expertise to even know how to orchestrate something like this, and besides, he has nothing to gain from it. But I think the media should begin to scrutinize staff members who Congressman McAllister retained. According to my most trusted sources, people who know more about this stuff than anyone else in the entire state, the real story isn’t that Vance McAllister cheated on his wife; it’s that someone, somewhere, for some reason sat on this video footage for nearly four months, and there’s a good reason it was released when it was and how it was.

Vance McAllister rents his district Congressional office from Bill Land, an architect whose offices are directly next door. It is unclear whether Mr. Land also owned and controlled the building’s surveillance equipment.

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Bill Land

Bill Land

Mr. Land, incidentally, donated $2,600 to Neil Riser’s Congressional campaign. He is not listed as a contributor on any of Vance McAllister’s campaign finance reports.

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I know more than I am currently willing to report, but suffice it to say, the Louisiana Republican Party and its leadership have never been happy with Congressman Vance McAllister’s outspoken support of Medicaid expansion. Here’s what Congressman McAllister recently said at an event in Washington, DC (bold mine):

“I thought, ‘You know what, I’m not going to skirt the issue. Republican, Democrat, it don’t matter. Those working poor have paid that money in. That money’s going to Washington. It’s their money,’ ” he said. “For me to say I’m against Medicaid expansion makes me the best congressman California and Massachusetts could ever have, because that’s where that money’s gonna go.”

“It’s about doing what’s right. You keep your people healthy, they’ll continue to work. They’ll do better,” he said. “The money’s there. As a business guy, I don’t like Gov. Jindal standing up there and trying to use political points” to argue that the state can’t afford the small fraction it would eventually have to pay to draw down billions in benefits. “It don’t take Einstein to figure out that’s a pretty darn good return on your investment.”

I’ve been told that party leaders were aware of Congressman McAllister’s plan to continue emphasizing the need for Medicaid expansion, not just in front of Washington audiences but also in meetings throughout Louisiana. And that, more than anything, may explain why these videos were released when they were.

It’s like the reverse, redneck Watergate: A political party that spies on itself.

75 Comments Post a comment
  1. Reblogged this on The Daily Kingfish.

    April 8, 2014
  2. Stephen Winham #

    Now THAT is REPORTING. Thanks, Lamar.

    April 8, 2014
    • Sam #

      That’s not reporting. It’s just speculation on a variety of possibly related OR unrelated facts. People who already have a bias will be swayed one way or another.

      April 8, 2014
      • Fred Sokolow #

        It’s only since Clinton that a politician’s sex life becomes the voters’ business. Granted, this guy ran on family values and was an adulterer. But don’t we hire these people to do their work and act in our interests? Using their sex life to ruin them, regardless of their political achievement, is nonsense in my opinion.

        April 9, 2014
  3. ADH #

    Just throwing this out there for what it’s worth but do you think this could also have anything to do with establishment Republicans HATING Duck Dynasty type folks? I mean all it took for this guy to win an election was this families endorsement and he won convincingly. You know that’s really got to be infuriating to the Party when “outsiders” influence an election the way they did.

    April 8, 2014
    • Ha! Yeah!

      April 9, 2014
    • Jimmy Ray #

      He IS an establishment Republican if he’s pushing for Medicaid expansion. He’s not a true conservative.

      April 9, 2014
  4. meandering1 #

    Eve is the one always at fault and the one who is dismissed from payroll immediately. Every situation of public immorality, the female is always the one who is dismissed from employment. McAllister’s press secretary, quick on the draw to say she was removed from payroll within the 24-hour period. Eve is always the first to go.

    April 8, 2014
  5. meandering1 #

    It’s just sad, very sad when these situations occur. So may people are hurt.

    April 8, 2014
  6. Dan Cook #

    Nice read Lamar, very in depth report

    April 8, 2014
  7. If it is the truth then what difference does it make when it was released? Of course the opposite side is going to try to come out with it when it is best for them. The fact of the matter is if you are going to run on your “christian morals” then you better make sure there are not whores in the background. It doesn’t matter if you are prejudice, anti-education, pro-war, as long as you wrap yourself in a flag, hate gays, have a bible in your hand it is all good. Just don’t have a whore in the hallway!

    April 8, 2014
    • Enos #

      I’ll tell you what difference it makes. With this kind of leak, there is always collateral damage. McAllister deserves to be exposed, sure. But McAllister has a wife and Peacock has a husband who are both suffering from the repercussions. Peacock’s husband is saying that this has ‘wrecked his life.’ What did he do wrong? Because he is a part of this, just as much as McAllister.

      April 8, 2014
      • Paul #

        This leak didn’t wreck Mr. Peacock’s life, his wife kissing McAllister did that. Maybe the two of them should have thought about their spouses and children before engaging in such heinous behavior. What did they think would happen when a a US Congressman cheats on his wife, that nobody would care?

        April 8, 2014
        • Robin Parkins #

          I think “heinous” is grossly dramatic…save that for the serial killer who tortures people. What McAllister & Peacock did was not only disgraceful, but scripturally wrong. I think he should resign, as well, but perhaps he should be given the same treatment by the liberal media as Anthony Weiner was given. Otherwise, this whole situation is between the parties involved and not all of America. Now, back to not only finding out who took the video & leaked it, BUT, trying to get moral leaders in the government who actually put the country first!!

          April 8, 2014
          • Markle #

            Given the same response by the liberal media as Weiner got? Anthony Weiner, in liberal NY, resigned within months, David Vitter, in Louisiana, has been reelected how many times?

            April 8, 2014
          • Jamie Covert #

            Weiner 1st idiot response was- Oh, my twitter account was hacked and started accusing people of hacking it. That was an outright lie. He had ignorant political allies believing him and backing him. When it all unraveled he was not just an embarrassment to the party but he had lied to to the people who had backed him and made them look like fools. That is what took “Carlos Danger” down.

            April 8, 2014
  8. Lynne Nevels #

    I voted for Vance, and I wouldn’t doubt any of this to be true and exactly what you purpose it to be, but two wrongs still do not make a right!
    He ran on family values, and honesty, and this behavior slaps both of those down. He still committed the behavior and lost focus on what he ran on. While I am not making light of the possible conspiracy theory given above….I voted for Vance, I put my faith in him to be what he said he was. That has been compromised! I did not vote for Neal, he did not let me down, Vance did!

    April 8, 2014
  9. Brent Sanders #

    The LAGOP central committee has committed serious crimes against its own party members at the 2012 State GOP convention. I wouldn’t be surprised if they continued that disregard for the law. The guys running the LAGOP are the worst criminal scum this state has to offer. This is a personal eye-witness testimony. There are youtubes of that convention to show the character of these people.

    April 8, 2014
  10. Jeff #

    When will conservative voters get it thru their heads that “family values” only means “we hate gays”? It doesn’t mean, ” I love my wife and will be faithful to her”. or “I love my children and will never do anything to hurt them, and I will do everything to keep them healthy, and nourish and educate them”.

    April 8, 2014
  11. Paul #

    Funny how you decry the paper for publishing her address then publish the address of the landlord in the same article.

    April 8, 2014
    • markle2k #

      It’s a business front shared with congressional field office. It could hardly be MORE public.

      April 8, 2014
      • Paul #

        That’s funny; her address, along with the landlord’s and McAllister’s address, are all public records. Doesn’t change the fact that they were supposedly published.

        April 9, 2014
    • Paul, the only possible way for me to credibly substantiate that the same William Land who owns the office building also donated to Senator Riser’s campaign was to post the corroborating public records. I stand by my decision here. On the other hand, there was no compelling journalistic or ethical reason for The Ouachita Citizen to publish the home address of Mrs. Peacock. It served no purpose other than to further humiliate and intimidate her.

      April 8, 2014
      • Paul #

        I went back to check on the article, looking for her address. I saw the office address but that was it.

        “No marriage license could be found through public records for Melissa and Heath Peacock though they as a married couple bought a home in Swartz less than a mile from McAllister’s home in 2007, according to 4th Judicial District Court records.”

        Did they really publish her address or just her location?

        As for the ethical implications, you are on a slippery slope. You claim your post isn’t in the wrong because it validates your claim that the landlord was a donor. If they wanted to claim she was a family friend, not just a staffer, why wouldn’t they have published proof?

        April 9, 2014
        • Paul #

          And why is she off limits? That kiss wasn’t forced on her, she was a willing participant? You seem to be fine with digging into the McAllister’s details but cry foul when anyone looks at the other half of the ‘problem’.

          April 9, 2014
        • Paul #

          To compare the Weiner incident, we only heard about his side because he sent unsolicited pictures to others. The recipients were victims, so to speak, not an accomplice.

          April 9, 2014
  12. Richard Spix #

    She was a cosmetologist, now working for the campaign for “fair pay”? Really?

    April 8, 2014
  13. Paul #

    “a fledgling website that claims to have a paid readership of more than 5,200 people but, based on third-party web traffic analytical data, likely has a daily audience of between 200-300 unique visitors”

    Do you expect every one of those 5,200 subscribers to access the website each and every day? Because the newsPAPER doesn’t have any physical subscribers, only digital ones.

    April 8, 2014
  14. Paul #

    Does it occur to you that the author of the article or the paper’s editor tipped off the ‘national’ journalists? That maybe putting the story out would drive traffic to their small website, the one that “that even most Louisianians have never heard of”?

    April 8, 2014
  15. Paul #

    Who should they have contacted to verify the video was legitimate? ‘Mr. McAllister, we have footage from inside your office, footage that is illegal to take, showing you kissing a staffer. Care to verify this story for us?’

    April 8, 2014
  16. Paul #

    You think that the camera in the office space rented by a Congressman is hidden for security reasons? Have you been in any other private office? In a federal building like a courthouse or social security office? Multiple cameras are everywhere and they aren’t hidden.

    It’s also a stretch to claim that every person in that office is in danger because the acknowledged existence of one security camera in his lobby, one on the outside hallway, and two on the parking lots.

    Of course, if there is a danger to McAllister from poor security camera setup, isn’t this footage a blessing? Now everyone knows about the blind spots in the building surveillance and it will be corrected ASAP.

    April 8, 2014
  17. Paul #

    Who benefits from this story breaking now? Why is it breaking now? Surely your sources that “know more about this stuff than anyone else in the entire state” have an idea of what’s going on.

    Are other Republicans, maybe Riser and Co., plotting the downfall of McAllister? Or is it Democrats that want to show the dark side of the GOP? Why release such a damaging video over 6 months before election day? Why not the week before the primaries or the general election itself, when it would be guaranteed to be fresh on everyone’s mind?

    April 8, 2014
  18. Paul #

    As to Riser’s ad in the Citizen, how is that an oddity? Do you see any Democrats advertising on Fox News? Why wouldn’t Riser run an ad in a paper that supports him or is read by those who would possibly vote for him? He’d be a fool to not get his name and face out to potential voters.

    April 8, 2014
  19. Anonymous #

    http://www.doc.la.gov/wp-content/uploads/2009/10/August-2011-DECISIONS.pdf

    Note Doc. #426884.

    This was signed by the governor at the encouragement of numerous local legislators. Want to bet Sen. Riser wrote a letter? It is public record.

    April 8, 2014
    • Paul #

      I can’t believe they took off four counts at once, not just one or two, leaving the guy with a little punishment.

      http://www.legis.state.la.us/lss/lss.asp?doc=78751

      April 8, 2014
    • Brent Sanders #

      Interesting find, thanks. Samuel A. Hanna, Jr. DWI, 1st, 2nd, 3rd and 4th
      Quick search also finds Mr. Hanna is already signed up on Jon Bel Edwards for Governor campaign site.
      Signing up this early usually isn’t for casual politicos.

      http://www.johnbelforlouisiana.com/samuelhanna69

      He was also Assistant Press Secretary for Governor Edwin Edwards.

      April 8, 2014
  20. James #

    What does the law say about a subordinate’s ability to consent to a relationship with a superior? Short answer is, they can’t. That would open up a whole new kettle of fish.

    April 8, 2014
  21. Don #

    reminds me of Chris Christy’s bridgegate scandal, Christy wants to run for President … js … how deep does this go ?

    April 8, 2014
  22. Great work, Lamar!

    Thank you for investigating the leak of this story. I agree that it’s an important question and that “the country should be more concerned that someone with a cell phone camera walked into a federal office, turned off the lights, and recorded the office’s security terminal.”

    A couple of points and questions:

    The Ouachita Citizen reported that this occurred on 12/23. Is that according to Mr. Anonymous? (What else did Anonymous say in his or her note to the news org?) I’ve watched the vid only twice, but didn’t see an obvious time stamp. What I did see is an apparent cell phone recording of security footage that was REPLAYED for the cell phone user. (I wouldn’t say the user “turned off the lights”. It appears the lights in the room are on and that the black frame of the vid is due to it being filmed by a cellphone held vertically.) Either the phone camera holder cued it up himself, or it was cued up by someone else in the room. Either way, there was an individual familiar with the equipment and tape present.

    Now, this doesn’t mean that the phone camera recording was necessarily taken on 12/23. Not knowing the details of how the security camera oversight works in that office, I’d speculate that 1) a security employee or office staff either witnessed it in real time or found it in a review of the video archives and tipped someone OR 2) someone, perhaps security personnel or office staff, reviewed the old tapes in a search for specific (scandalous?) footage, or allowed someone else to perform such a search.

    So it’s not clear to me that one particular individual sat on this for 4 full months, as many assume. Someone might’ve “known” about it and then tipped someone (or sought $$ for it). Or it might’ve been discovered in a subsequent search. Also, It’s possible Anonymous sent it to Ouachita and other news orgs but only Ouachita chose to run it. (Unlikely but possible) I’d also speculate that Hanna and company alerted Politico to their scoop before or just after they ran the story. As for the other rapid national coverage, it’s pretty easy to quickly assemble a story on news someone else has broken. Ouachita may have had this for several days, perhaps longer. The paragraph on the Peacock marriage history is indeed bizarre.

    April 8, 2014
    • You can see in the video, McAllister’s shirt is untucked and a bit messy. He walks to the door and turns off the lights. The only lights that remain are likely the exit lights that remain on. She’s not behind him so he walks back to get her. They then walk to the door and she turns and they kiss. The time stamp is the day before Christmas Eve early afternoon.

      Many offices close at noon the day before Christmas Eve. Let’s assume this was the case here. Someone in the office noticed the two stayed behind when everyone left at noon. That someone suspects the two are having an affair. He/she checks the security camera and sees this and records it on his/her cellphone.

      If they were actually working, it’s doubtful a congressman would be so unkempt with his shirt out like that early afternoon. It’s not like he had been working a 12 hour day. That kiss was the end of an act which was a bit more involved. But apparently there is no security camera in the actual offices, which of course makes sense. The cameras would be in the access points of the office.

      April 9, 2014
      • Stephen Winham #

        Your assessment of the situation makes the most sense of any.

        April 13, 2014
  23. Who cares how the story got out? He is just another big money whore … quack quack.

    April 8, 2014
  24. patricia mullins #

    Whoever wrote this done their homework….WOW..now this make since..Mr Vance may have done wrong but when God forgives you..NO ONE should ever bring that sin back up..His family needs our prayers..And all these people who have pre planned this and plotted this scandal. .well remember this …you reap what you sow..or what goes around comes around…so yep I would say yours will be coming out ON THE ROOF TOP…mark it on your calendar. ..

    April 8, 2014
  25. Kendall #

    Great reporting. Stay on this.

    April 8, 2014
  26. DJInSouthLouisiana #

    Oops, the video is from his own security system. Not disputing that it should be protected, but it was his own security system and his security company may be the ones behind the leak.

    April 8, 2014
  27. Bud #

    Well, here’s someone that agrees: http://www.mediaite.com/online/louisiana-pastor-thinks-theres-a-conspiracy-to-destroy-kissing-congressman/

    April 8, 2014
  28. Marshal Tensley #

    This article is a lie.

    Lamar White says, “…there are laws that expressly prohibit bugging federal offices, and recording surveillance footage from a federal office- without consent; it is a felony.” But is there really such a law? Of course not.

    Lamar had to do a little plagiarizing to make his bogus claim. But because he was plagiarizing from somebody who was saying something totally different, a few changes were in order. Below is the original passage as it appeared in a transcript at BayouBuzz.com:

    “The law prohibits bugging federal office and recording with surveillance footage from a federal office without consent. It could be a felony.”

    Do you see what White did? By removing the word “with” from the plagiarized version, he changed the meaning of the sentence. Instead of prohibiting surveillance without consent, White’s new law prohibits the recording of existing surveillance footage without consent.

    The plagiarized transcript appears here: http://tinyurl.com/pm7fq7m

    April 8, 2014
    • I plagiarized myself? I almost deleted your comment, but I thought better of it: It’s hilarious. Stephen at BayouBuzz republishes my content, which I appreciate. He received the very first draft late last night, posted it, and then, I cleaned up some of the post after reading it over a few times.

      Actually, I should thank you for the comment, because you’ve set me up perfectly for something I’ve been working on.

      April 8, 2014
      • Marshal Tensley #

        Oh, I think I get it now. He was reading a version of your lie before it was polished.

        April 8, 2014
        • No, Marshal Tensley, you don’t get it. If you have something substantive to add, you’re more than welcome here, but if your only purpose is to call me a liar and laughingly accuse me of plagiarizing myself, you will be banned.

          April 8, 2014
          • Marshal Tensley #

            Okay, no big deal. I didn’t know Jeff Crouere was reading a version of something you wrote.

            April 8, 2014
    • I didn’t hear it, but I understand that both he and Moon Griffon gave me an attribution. But it’s neither here nor there. If I am being accused of plagiarizing myself, it means my blog may have reached maximum saturation.

      April 8, 2014
  29. For all of you who are interested in how this interacts with the state and federal law:

    Of course, ultimately, crimes are determined by findings of fact. Here, we do not know all of the facts. We do not know who leaked this video. We do not know when it was recorded. We do not know where it was recorded. We cannot even be certain exactly how it was recorded. Some have suggested that these questions are irrelevant, that the only thing that really matters is Congressman McAllister’s infidelity. I certainly understand how and why someone would feel that way, and I want to make it abundantly clear: I am not defending Mr. McAllister. I believe he should have already resigned, and I believe he’s been exposed as just phony as his friends from Duck Dynasty. (You know, the preppy millionaire brothers who used to frost their hair and dress up in Lacoste polos and boat shoes?)

    But regardless of how egregious one may find Mr. McAllister’s actions, we must consider, as both a matter of public policy and law, whether it’s wise to look the other way when it appears that someone entered into a federal office (potentially under false pretenses) and then accessed, recorded, and transmitted surveillance footage (and the entire surveillance terminal), no matter what the footage revealed. At the very least, this deserves a thorough investigation.

    Here are the relevant federal statutes, along with some analysis to consider:

    Electronic Communications Privacy Act of 1986 (ECPA, codified at 18 U.S.C. §§ 2510–2522) was enacted by the United States Congress to extend government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer.

    There are questions to determine criminality under state and federal law: e.g., was it recorded by a smart phone in real time, or was it a playback of a stored recording onto the smart phone using its video and computer as a storage; and in either case storing data to send to another? There are others, and the nuances are critical since criminal law is strictly construed in favor of the accused under the principle of lenity and due process so that ambiguities favor the accused. The state law provisions contain similar questions of application, but all also require analysis of other crimes in federal and state law such as whether the recorder was authorized to be in the building when the recording was made. “Silent video” is important as a distinction, but here, we may not have capture of a silent video in real time but the interception of the video onto the smart phone (computer) for storage and then publication. Again, the only way we can determine this is after an investigation of the facts.

    For additional reading: https://www.fas.org/sgp/crs/misc/R41733.pdf. (Check out page 12 and the cases listed in footnote 71).

    18 U.S.C. § 2510(12). Federal Wiretap Act.

    “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce . . . .

    18 U.S.C. § 2511.

    (1) Except as otherwise specifically provided in this chapter any person who—

    (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

    * * * *

    (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

    (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or . . . .

    * * * *

    shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5). . . .

    * * * *

    (4)
    (a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both. . . . .

    18 U.S.C. § 2520. Civil Suit Authorized.

    (a) In General.— Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

    (b) Relief.— In an action under this section, appropriate relief includes—

    (1) such preliminary and other equitable or declaratory relief as may be appropriate;
    (2) damages under subsection (c) and punitive damages in appropriate cases; and
    (3) a reasonable attorney’s fee and other litigation costs reasonably incurred.

    (c) Computation of Damages.—

    (1) In an action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:

    (A) If the person who engaged in that conduct has not previously been enjoined under section 2511(5) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $50 and not more than $500.
    (B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 2511(5) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than $100 and not more than $1000.

    (2) In any other action under this section, the court may assess as damages whichever is the greater of—

    (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
    (B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

    With respect to state law, it appears even more problematic to apply, but here are relevant statutes most of which, except a possibility in 15:1307, do not apply, I suspect:

    R.S. 15:1307. Prohibition of use as evidence of intercepted wire or oral communications

    A. Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this Chapter.

    B. No person may broadcast, publish, disseminate, or otherwise distribute any part of the content of an electronic communication intercepted in violation of the provisions of this Chapter unless such dissemination or distribution is made to an investigator or law enforcement officer conducting an investigation into a violation of the provisions of this Section.
    Acts 1985, No. 859, §1, eff. July 23, 1985; Acts 1995, No. 1193, §1, eff. June 29, 1995.

    May not apply because video may not be an “electronic communication” under the Louisiana Electronic Surveillance Act (La.R.S. 15:1301 et seq.)?

    Like federal law, “electronic communication” means any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system, but does not include any of the following:
    (i) Any oral communication.
    (ii) Any communication made through a tone-only paging device.
    (iii) Any communication from a tracking device used to locate a mobile object by emission of a sound signal.

    Act authorizes punitive damages against violator.

    The criminal law, La.R.S. 14:322, provides:

    §322. Wire-tapping prohibited; penalty

    No person shall tap or attach any devices for the purpose of listening in on wires, cables, or property owned and used by any person, for the transmission of intelligence by magnetic telephone or telegraph, without the consent of the owner.
    Whoever violates this Section shall be fined not less than ten dollars nor more than three hundred dollars, or imprisoned for not more than three months.

    This Section shall not be construed to prevent officers of the law, while in the actual discharge of their duties, from tapping in on wires or cables for the purpose of obtaining information to detect crime.

    Does not appear it is a felony under this law. However, consider video voyeurism’s second definition in R.S. 14:283, but only if lewd and lascivious applied—and I am not sure about this with principles of applying criminal law strictly, right:

    §283. Video voyeurism; penalties

    A. Video voyeurism is:

    (1) The use of any camera, videotape, photo-optical, photo-electric, or any other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping a person where that person has not consented to the observing, viewing, photographing, filming, or videotaping and it is for a lewd or lascivious purpose; or
    (2) The transfer of an image obtained by activity described in Paragraph (1) of this Subsection by live or recorded telephone message, electronic mail, the Internet, or a commercial online service.
    B.(1) Except as provided in Paragraphs (3) and (4) of this Subsection, whoever commits the crime of video voyeurism shall, upon a first conviction thereof, be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than two years, or both.
    (2) On a second or subsequent conviction, the offender shall be fined not more than two thousand dollars and imprisoned at hard labor for not less than six months nor more than three years without benefit of parole, probation, or suspension of sentence.
    (3) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any vaginal or anal sexual intercourse, actual or simulated sexual intercourse, masturbation, any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva, or genitals shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than one year or more than five years, without benefit of parole, probation, or suspension of sentence.
    (4) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any child under the age of seventeen with the intention of arousing or gratifying the sexual desires of the offender shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years without benefit of parole, probation, or suspension of sentence.
    C. The provisions of this Section shall not apply to the transference of such images by a telephone company, cable television company, or any of its affiliates, an Internet provider, or commercial online service provider, or to the carrying, broadcasting, or performing of related activities in providing telephone, cable television, Internet, or commercial online services.
    D. After the institution of prosecution, access to and the disposition of any material seized as evidence of this offense shall be in accordance with R.S. 46:1845.
    E. Any evidence resulting from the commission of video voyeurism shall be contraband.
    F. A violation of the provisions of this Section shall be considered a sex offense as defined in R.S. 15:541. Whoever commits the crime of video voyeurism shall be required to register as a sex offender as provided for in Chapter 3-B of Title 15 of the Louisiana Revised Statutes of 1950.
    Acts 1999, No. 1240, §1; Acts 2003, No. 690, §1; Acts 2003, No. 1245, §1.

    The question is whether the transmittal was for a lewd or lascivious purpose, which Black’s Law defines as:

    Lewd is a term that also means indecent, pornographic, obscene and lascivious.

    Lascivious is tending to excite lust; lewd ; Indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations. See Swearingen v. U. S., 101 U. S. 440, 10 Sup. Ct 502, 40 L. Ed. 705; U. S. v. Britlon (Com. C.) 17 Fed. 733; Dunlop v. U. S., 105 U. S. 4S0, 17 Sup. Ct. 375, 41 L. Ed. 790; U. S. v. Durant (D. C.) 40 Fed. 753.

    I doubt this would qualify as either lewd or lascivious.

    I hope this helps. I had considered putting all of this legal analysis in the original post, but as you can see, it’s rather cumbersome.

    April 8, 2014
    • Your “legal analysis” is deeply flawed re the federal statutes. In no way can this fall under the statutes you cited.

      18 U.S.C. § 2511 applies to intercepting or the attempt to intercept any wire, oral or electronic communication. This was a surveillance video. This statute does not apply. Ditto for 18 U.S.C. § 2520 for the same reason. 18 U.S.C. § 2510(12) defines “Electronic communication” for both statutes and it is clear the material, when intercepted or attempted to be intercepted, must be “of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system”. A surveillance video is not.

      You are correct in that it also does not fall under video voyeurism.

      Any comparison to this act and O’Keefe’s act is ludicrous.

      Was this done for political purposes by his opponents? Probably so. It reminds me very much of what happened with Arkansas Circuit Judge Mike Maggio who announced his withdrawal from the Arkansas Court of Appeals race because of reporting on his injudicious comments on Tiger Droppings, an LSU fan website. He wasn’t exposed until after the close of the announcement election period. His withdrawal from the race gave the seat to his opponent by default.

      Was it illegal? Unless someone broke into the office to do this (and there’s been no such assertion), there is no crime here.

      April 9, 2014
      • Totally inaccurate, Michael. Depending on the facts, surveillance videos can apply. Try again.

        April 9, 2014
    • Paul. #

      Test

      April 9, 2014
    • Paul. #

      As my email address is now blacklisted…

      I think there are two issues regarding the footage, who did the filming and was the filming illegal.

      If it was a staff member or someone with allowed access to the security footage, how can they be charged when seeing security footage is to be expected? You can’t charge a maid for spying when she see’s a cheating couple in their hotel room. For someone to break in seems odd, they would have needed to know the footage existed in the first place. Then they would have to gain access to the building, gain access to the security equipment, then gain access to the computer, all while never being caught or triggering any alarm. Occam’s razor says that it was an ‘inside job’ that filmed the footage.

      In regards to the filming being illegal, look at how the law has been applied in similar cases. Robbins v. Lower Merion School District is a good example, a federal case from 2010. That’s a case of a school district spying on students via school-owned laptops. “The Federal Bureau of Investigation (FBI), U.S. Attorney’s Office, and Montgomery County District Attorney all initiated criminal investigations of the matter, which they combined and then closed because they did not find evidence “that would establish beyond a reasonable doubt that anyone involved had criminal intent”.”

      So if the person doing the filming didn’t have any criminal intent, what crime was committed? The original footage was certainly legal. The Chairman of the Senate Judiciary Subcommittee on Crime and Drugs, Arlen Specter, found that current laws were lacking in regards to the modern age of cellphone cameras and webcams.

      As a caveat, if the person who filmed this tried to extort McAllister before releasing the footage, then all bets are off and criminal charges should be guaranteed. But he hasn’t indicated anything of the sort, has he?

      http://en.wikipedia.org/wiki/Robbins_v._Lower_Merion_School_District

      http://www.csmonitor.com/USA/Justice/2010/0817/Did-school-use-laptops-to-spy-on-students-Feds-won-t-press-charges

      http://www.businessweek.com/ap/financialnews/D9EOHVVG0.htm

      April 9, 2014
    • NotPaul #

      Are you blocking my posts? They are ‘awaiting moderation’ or something.

      April 9, 2014
      • Paul, I’m not blocking your comments. I see what the issue is. WordPress flagged them because they contain links. Sometimes it does that. I’ll approve them.

        April 9, 2014
  30. charon james #

    Not to sound insensitive. I am currently unemployed and looking for work. Since Mrs Peacock has resigned, is there any chance I can fill her vacant position.

    April 9, 2014
  31. Stephen Winham #

    Charon, good one. Lamar, I guess your last post goes to show one should not mess with a law student ;-). Keep on keeping on!

    April 9, 2014
  32. Pascagoula pete #

    What I want to know is the following:
    How come the congressman and his red hot lover didn’t notice the person standing behind them, on a top of a ladder, videoing taping them?

    April 9, 2014
  33. J Watts #

    I voted for the guy and was quite disappointed when this surfaced. How ever, I was wondering how this got out. If this is from his security system he should have known he was being taped. They both should have known where the camera was located. I am also sure no one was assigned the job of looking at the tapes every morning. So someone had to have been looking to find this. We all have to remember politics is a filthy game. Lawyers make up the majority of politicians, so what can you expect. Most of the ones I know of do not have the highest morals. (That comment may come back to haunt me) They wonder why the TEA Party gained in popularity, simple, it did not have career politicians involved, just average citizens. The GOP and Dems are all tainted. So to think he could have been set up by someone like Riser or the state GOP is not really a stretch of the imagination.

    April 9, 2014
  34. xxvamplestatxx #

    Democrat or Republican they are all corrupt and crooked.

    April 9, 2014
  35. Billy Ray Joe Bob #

    You don’t question Massah Willie. Massah Willie and his Daddy be the law in these here parts. This here be Louisiana. With a Bible in every hand, a flag from the War of Northern Aggression hanging from every pole, and a non-white dangling from every tree deep in the Bayou.
    Yee-haw!

    April 9, 2014
    • J Watts #

      This without a doubt is the most (I’ll just use the word stupid) stupid comment I have came across in quite a while. No wonder he or she did not post their name. They need to quit shaking their head because the rattle of their brain is very distracting.
      Read the post put up so far, 98% are intelligent and about said subject, but, this one is baffling.

      April 9, 2014
  36. Regardless of who leaked the video, if Vance hadn’t been lip-locking the hired help, we wouldn’t be having this conversation at all. I’m disappointed in Vance.

    April 9, 2014
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