California's attorney general and prospective Democratic gubernatorial candidate, Jerry Brown, is trapped in a political cage from which there will be no easy escape. When it comes to secretly recorded conversations, and a national scandal involving the housing advocacy group ACORN, Brown is going to find himself in trouble no matter what he does.
Brown's office is investigating two conservative filmmakers, James O'Keefe III and Hannah Giles, who last summer posed as a pimp and a prostitute and secretly videotaped employees at ACORN offices giving tax advice that was highly unethical if not illegal. Some of those offices were in California, which forbids secret electronic recordings of "confidential communication." Liberal activists are expecting Brown to throw the book at the filmmakers -- and conservatives are simultaneously pillorying him for a separate incident in which he gave his own spokesman a pass after he appeared to be breaking the same law. Although the controversy might well haunt Brown during his campaign for governor, the two cases are actually very different from a legal standpoint.
Scott Gerber, Brown's former communications director, resigned this month after admitting that he secretly recorded phone conversations with newspaper reporters, including from The Times. The attorney general's office closed its investigation into Gerber last week without filing charges. Its rationale was that no one should expect an on-the-record conversation between a news reporter and a source to be confidential, including the reporter. We strongly agree that that's the way the law should be interpreted, but opinions differ because the phrase "confidential communication" in the law is poorly defined. Brown has rightly called for an independent investigation into Gerber's activities.