Not under indictment: Planned Parenthood.

Photographer: Andrew Burton/Getty Images

How the Planned Parenthood Case Backfired

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The indictment of anti-abortion activist David Daleiden is a stark reminder that the criminal law is a dangerous animal: Once it’s set free, there’s no telling who will be its target. Yet Daleiden is extremely unlikely to receive anything but symbolic jail time if convicted of the charge of making and using a false California driver’s license in the course of his undercover attempt to discredit Planned Parenthood clinics in Texas. And despite what his supporters might say, the indictment doesn’t pose a threat to First Amendment values or legitimate investigative journalism.

An unexpected turnabout put Daleiden in criminal jeopardy. From the start, his goal seems to have been not simply to make secret videos that would embarrass Planned Parenthood, but to show that certain abortion clinics were violating a Texas law that criminalizes the sale of fetal tissue. It’s lawful for a clinic to donate the tissue, and to be reimbursed for its expenses in doing so. But Daleiden appears to have thought he could induce clinic representatives to sell tissue illegally.

QuickTake U.S. Abortion Clinics

Regardless of what Daleiden meant to show, Texas Lieutenant Governor Dan Patrick wanted to bring the criminal law to bear in the case. He publicly asked Harris County District Attorney Devon Anderson to open a criminal investigation against Planned Parenthood in August. Anderson complied, and a grand-jury investigation ensued.

On Monday, the grand jury cleared Planned Parenthood of any wrongdoing. But once it had evidence and, presumably, testimony before it, the grand jury had the power to indict Daleiden and an associate, Sandra Merritt, who participated in making fake IDs.

We don’t know what happened in the sealed grand jury room. But there are basically two possibilities. One is that the grand jury went rogue, turning on the accusers of its own volition. A good district attorney could advise such a runaway grand jury not to indict people he or she considered not to have committed crimes. But technically, it’s the grand jury that indicts, not the prosecutor. The final decision lies with it.

The other possibility is that Anderson, the Republican district attorney, guided the grand jury to its indictments. That’s the more normal course, because typically the only lawyer in the room is the prosecutor. The old expression has it that prosecutors can persuade grand juries to indict a ham sandwich if they really want to. That’s an overstatement, but not by much.

If that’s indeed what happened, Anderson must’ve understood that she’d come under fire from fellow Republicans. The best explanation is that, looking at the evidence, she genuinely thought Daleiden and Merritt should be charged with a crime. Prosecutors are like that: They want to punish criminals when the evidence of the crime is squarely presented.

So what will happen to the defendants? The felony of altering a government document is punishable by up to 20 years in prison. But it’s a safe bet that Texans who make fake IDs -- say, so underage kids can buy alcohol -- aren’t getting 20-year sentences under normal circumstances.

It’s an unfortunate fact of modern criminal law that maximum sentences are set outrageously high. In theory this allows judges to implement extreme punishment for an extreme case. In practice, it gives leverage to prosecutors to extract a plea bargain from defendants.

The upshot is that one would expect Daleiden and Merritt to plea-bargain in exchange for minimal or zero jail time. If they do go to trial as a matter of principle, they would still be unlikely to get long sentences. Their use of fake IDs wasn’t narrowly self-interested. In their own misguided way, they were trying to do good in the world.

There’s also a misdemeanor charge against Daleiden in connection with the purchase of fetal tissue. Logically, this seems as though it should be a charge for offering to purchase, because a completed purchase would require a seller, and Planned Parenthood hasn’t been indicted. The charge of the offer, if that’s what it is, raises an interesting question: Can you be charged with attempting a crime when what you were planning was a sting operation?

If Daleiden were a police officer, the answer would obviously be no. But he’s not, and if he actually intended to go through with the purchase, then publicize it, there’s a strong argument that he could be found guilty of offering to buy the tissue. That said, the punishment for an attempted misdemeanor is likely to be small.

This leaves the question of whether the indictment will have a chilling effect on legitimate investigative journalists, as some critics have already begun to say.

The short answer is that it shouldn’t. A genuine investigative journalist wouldn’t have broken the law by making or using a fake driver’s license. The sting-related charge is a more subtle question. Again, it seems unlikely that an investigative journalist would’ve sought to complete a crime in order to report on the criminal. If one did, it would be with full knowledge that the journalist could be prosecuted.

Daleiden’s amateur activism may or may not have crossed ethical lines. But if he crossed legal lines, he can legitimately be prosecuted. The criminal law is a dangerous thing.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net