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Everything You Need To Know About The Planned Parenthood Videographer Indictments

That’s definitely not how anyone saw that investigation going.

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(AP Photo/Jacquelyn Martin)

On Monday, the grand jury investigation into the undercover videos made involving the Planned Parenthood Gulf Coast office in Houston released its indictments. It didn’t go as expected. Although the assumption was that the investigation would be looking for criminal wrongdoing on the part of the Planned Parenthood facility and its staff, the grand jury instead charged David Daleiden and Sandra Merritt—the people who made the undercover videos—with tampering with government records (a second-degree felony) and an additional misdemeanor charge for Daleiden related to purchasing human organs.

This was certainly an unexpected twist in a story that’s been full of them. While accusations of for-profit sale of fetal tissue at Planned Parenthood have, even after investigation, failed to result in criminal charges, there’ve been a lot of questions that have come up in the wake of the videos.

Who was being investigated and why? 

The investigation was initiated in August when staunch abortion and Planned Parenthood foe Lieutenant Governor Dan Patrick asked Harris County District Attorney Devon Anderson—a political ally—to “immediately initiate a criminal investigation” following the release of five videos from the Planned Parenthood Gulf Coast office that suggested that the staff engaged in selling fetal tissue for profit. District Attorney Devon Anderson affirmed that her office would be looking into criminal charges and convened a grand jury.

In a grand jury proceeding, the investigation is meant to look at the entire situation for evidence of a crime. It’s like replay review in football—a coach may throw the flag to challenge the spot of the ball because he wants a first down, but if the refs find that the player fumbled before his knee touched the ground, it’s suddenly a turnover. Patrick may have wanted the investigation to look at “the gruesome and barbaric work of Planned Parenthood and what appears to be it’s profiteering from selling body parts from aborted babies,” but Anderson’s job is broader than that. Re-reading what she said at the time the investigation was launched, that becomes clear:

“I want to assure everyone in Houston that I will use every resource allocated to this office to conduct a thorough investigation and should we find that laws were broken, we will prosecute to the fullest extent of the law,” Anderson said.

The investigation didn’t find that Planned Parenthood sold fetal tissue for profit, as Patrick had believed it might when he called for it. Instead, it found that Daleiden and Merritt would be charged with tampering with government records for falsifying California driver’s licenses—a felony—while Daleiden also faces an additional misdemeanor charge for offering to buy fetal tissue.

How can Daleiden be charged with buying fetal tissue, but Planned Parenthood not be charged with selling it?

Records indicate that Daleiden offered via email to purchase fetal tissue from the Planned Parenthood Gulf Coast facility for $1,600 per sample, but that the facility never responded. The misdemeanor from which Daleiden’s charge appears to stem, though, doesn’t mean that he actually needed to succeed in buying human organs (which includes from fetuses). It can be a crime to attempt to traffic human organs and fetal tissue, even if the entity you’re offering to buy from isn’t selling. (Think of it as trying to buy drugs from an undercover cop—the person who asks is still breaking the law.)

The misdemeanor charge is probably less likely to hold up in court than the felonies, though. At the very least, a question of letter-of-the-law vs. spirit-of-the-law means that since Daleiden’s intention wasn’t to illegally obtain human organs, but to find out if Planned Parenthood would sell it to him (which, to be clear, it would not), a halfway decent defense attorney could probably persuasively argue that applying that law in this case wouldn’t serve the intention of the people who wrote it.

What about the charge for tampering with government records?

The felony charges against both Daleiden and Merritt are a different story. According to the New York Times, the pair used fake California driver’s licenses that included their photographs, but falsified their names and addresses.

“We know that they used fake IDs that had their real photographs but fake names and fake addresses purported to be issued by the State of California,” said Josh Schaffer, a Houston lawyer who represents Planned Parenthood Gulf Coast in the Harris County criminal investigation. Mr. Daleiden and Ms. Merritt presented those IDs to security at the Planned Parenthood office to gain entry to the building. “They never denied that they presented a fake ID,” Mr. Schaffer said.

Daleiden issued a statement following the indictment indicating that he considered what he and Merritt did to be standard operating procedure for investigative journalists. It’s technically possible that some investigative journalists have used fake IDs in the course of their reporting, presumably, and gotten away with it—but his claim that his organization, The Center for Medical Progress, “uses the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press” is—if the documents presented to the grand jury really were falsified California driver’s licenses, as the charge alleges—not accurate.

The ethics of undercover reporting are a much-discussed issue among journalists. In 1997, ABC News erupted a scandal when its reporters did an undercover investigation with the supermarket chain Food Lion. In that case, an appellate court found that reporters who lied on employment applications in order to gain access to stores aren’t protected by the First Amendment and may be liable for trespassing—and that’s for omitting information on a job application at a grocery store, not creating a fake government-issued ID.

A criminal court will weigh whether the allegations against Daleiden and Merritt are true, but “everybody else does it” isn’t much of a defense.

So did Planned Parenthood try to sell fetal tissue for profit or what?

To put it plainly, there’s no evidence that they did. We know that when offered the chance to do so, the Gulf Coast facility didn’t respond. That hasn’t stopped Texas officeholders from believing what they’ve seen in the heavily edited videos. Both Greg Abbott and Ken Paxton issued statements reassuring their supporters that, even if the Harris County DA and the grand jury find that only the people who made the videos committed a crime, they’ll continue using the state’s resources to look for more evidence.

“Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation,” Mr. Abbott said in a statement. “The State of Texas will continue to protect life, and I will continue to support legislation prohibiting the sale or transfer of fetal tissue.”

The state attorney general, Ken Paxton, said in a statement: “The fact remains that the videos exposed the horrific nature of abortion and the shameful disregard for human life of the abortion industry. The state’s investigation of Planned Parenthood is ongoing.”

Many viewers found the videos, upon their initial release, to be disturbing. After more than half a year of investigation into the veracity of the footage, though, it seems clear that a big part of why they were so disturbing is because much of it was deceptively edited. (An image that one of the videos indicates is of an aborted fetus at nineteen weeks is actually of a stillborn baby, for example.)

So what do we know?

Ultimately, in a story that pushes as many cultural buttons as this one does, a simple list of the facts is hard to come up with, simply because few people agree on the givens. But here’s what we know right now:

  • A grand jury investigation of Planned Parenthood Gulf Coast found no evidence that the facility or its staff committed any wrongdoing as it relates to the videos.
  • Two of the people responsible for the videos have been indicted on felony criminal charges.
  • The State of Texas is still investigating the Planned Parenthood facility to see if they may have committed any criminal activity that the Harris County DA’s office, the Texas Rangers, and the grand jury may have missed.
  • No evidence currently exists that Planned Parenthood engaged in the for-profit trafficking of fetal tissue.

Daleiden and Merritt may plea to a lesser offense or be acquitted at trial. Planned Parenthood Gulf Coast may endure the state’s investigation equally unscathed, or the state may find cause to indict one or more people from the facility. More evidence may emerge regarding the practices that Daleiden and Merritt sought to document. More evidence also may emerge regarding the activities that the two engaged in as they attempted to make their videos. But for the moment, it’s clear that when a grand jury empowered to indict anyone who broke the law in this case took a hard look at all of the players, the only criminals they believed they saw were David Daleiden and Sandra Merritt.

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  • José

    One has to admire the integrity of DA Anderson, both in resisting Patrick’s politically motivated request for an inquisition into PP’s operations, and in the willingness to look at the entire picture and all the players to see who might have crossed the line.

    It’s sad, really, that many anti-choice zealots are so willing to jettison basic principles such as truth and respect for the law. Presumably they resort to lies and crimes in the pursuit of some imagined greater good. If so then they need to have a darned good explanation why their actions were necessary, and they need to be willing to suffer the consequences of their poor judgment. Based on what we’ve seen so far, what with the grossly misleading nature of the edited videos, these fraudsters have a tough case to make.

    • wessexmom

      Don’t speak too soon. Anderson is feeling the heat and has now said she will re-visit the evidence etc etc. When is the statute of limitations going to expire on this nonsense? Eight other state investigations have also exonerated PP on this matter. I am sick and tired of it!

      Over ninety percent of what PP does is issue birth control, so if Patrick and Abbott were REALLY interested in stopping abortions you’d think they’d want to give PP more funding, not less! In truth, their motives are MUCH darker and misogynistic than they will admit to; they’re not just against abortion; They’re against WOMEN!

    • Kit the Coyote

      These CMP folks have a TV movie’s view of journalism and reporter’s rights. This is why real news organizations have a lead editor to step up and say wait did you consult legal on this?

      I’m not sure the case will even go to court given the politics and if it does, they will likely get a hand slap in the end based on their intentions. It is good that the justice system is sending a reminder to would be ‘journalists’ out there that there are limits to what you can do if you are not a Law Enforcement Officer but they would have a hard time selling throwing the book at them to a jury given the atmosphere of this case.

      • José

        Good point.
        You know, the CMP folks would have a stronger argument if they actually followed through on the journalism part. And the funny thing is that they had a sort of interesting story. They tried and tried to trick PP into doing something illegal AND THEY FAILED. A true journalist would write up the facts and report that. But CMP did pretty much the opposite, and instead fabricated a tale to support their political agenda. That’s not journalism and they have no excuse.

    • themisfitjoe

      Umm… planned parenthood’s own investigation found that the videos were not edited, and were 100% genuine. People just desperately want to forget that when you get an abortion, you are asking a doctor to butcher a human being

      • José

        Whatever you think the word “edited” means, you’re sorely mistaken. Ther original videos released to the public, the ones accompanied by the sensational accusations, were unquestionably edited. I mean, the first video was about 9 minutes excerpted from a total of about 160 minutes of raw footage. Do you think that happened by changing the playback speed or something? Dude…

        It’s easy to find an analysis of the editing—what was conspicuously excised, how one question was spliced with the response to a different one—that kind of thing. Sure, the individual segments are real but they are cut, filtered, and reassembled to tell a story that is false. NBC did something similar with the George Zimmerman call to 911 after shooting Trayvon Martin. NBC got hammered for that mistake, and rightfully so. CMP’s sin was a lot more extensive and obviously intentional.

      • Kit the Coyote

        What they showed was there was no digital manipulation, as in someone inserting something into the video that wasn’t in it using something like Photoshop. That does not mean there was no editing, in fact there was a lot of editing done. The lies in the videos are lies of omission and careful cutting and splicing of scenes to create false impressions.

  • Randall Garlington

    Thank you for being fair in your assessment of the misdemeanor charge and the very steep hill it has to climb to convince any jury of its validity in the long run. I don’t agree with the whole article but that portion was very well done.

    I do have to wonder about jurisdiction issues on the fake drivers licenses. I see some roadblocks for the prosecution actually getting anywhere with claims of fake out of state IDs. Just because they used them here doesn’t necessarily grant the county the jurisdiction to prosecute tampering of an out of state document. The county would need to alter the charge to something it can actually prosecute like fraud.

    • MissMariRose

      Actually, using the fake licenses here DOES grant the Harris County DA jurisdiction to prosecute. The definition of “government record” (section 37.01(2) of the Texas Penal Code) that applies to the crime with which they’ve been charged- Tampering with a Government Record (section 37.10 of the Texas Penal Code) – does not limit it to a Texas record. It can be any government, including the State of California.

  • enp1955

    Thank you for this article. It is much clearer and less emotionally charged than most I have seen on this subject. Of the four items you listed as what we know, the third is discouraging. It seems that the people that run our state will continue to tilt at this particular windmill no matter what those that work for them find as the true situation on the ground (to mix a couple of metaphors – sorry).