Tea Party Leader Faces Two Felonies

[Midtowner]

A co-founder of the Sooner Tea Party was charged Tuesday with blackmail over an email that he admits sending to a state senator.

Al Gerhart, 54, of Oklahoma City, also was charged with violating the Oklahoma Computer Crimes Act.

Both counts are felonies.

Sooner Tea Party co-founder charged with blackmailing Oklahoma state senator | News OK

The big hairy question here is whether a conversation in which political consequences are threatened if certain political action isn't taken is protected by the First Amendment. Both blackmail and libel aren't and there's no case law (none I can find) on point. I hope they take it to the mat instead of pleading out to something.

[Larry OKC]

i was wondering about that when I read in the paper that under Oklahoma law it is considered blackmail.The original article mentioned the "threat" of making him a "laughing stock" if the bill was not heard by his committee and passed. That seemed rather absurd. Where the guy may have crossed the line was in threatening to dig up dirt on his wife & family etc. I quess you can go ahead and do the dirt digging/exposing just don't tell them about it in advance and/or expect something in return (payment or hearing the bill)/ Also unclear what the Highway Patrol had to do with it??

That said, under our blackmail laws, wouldn't D.A. Prater's "threat" to the Pardon & Parole Board for them to resign or he was going to file charges qualify as blackmail to? Or is the DA exempt somehow???

[kelroy55]

Good thing he didn't have a joint, he would be doing time for sure.

[BoulderSooner]

i was wondering about that when I read in the paper that under Oklahoma law it is considered blackmail.The original article mentioned the "threat" of making him a "laughing stock" if the bill was not heard by his committee and passed. That seemed rather absurd. Where the guy may have crossed the line was in threatening to dig up dirt on his wife & family etc. I quess you can go ahead and do the dirt digging/exposing just don't tell them about it in advance and/or expect something in return (payment or hearing the bill)/ Also unclear what the Highway Patrol had to do with it??

That said, under our blackmail laws, wouldn't D.A. Prater's "threat" to the Pardon & Parole Board for them to resign or he was going to file charges qualify as blackmail to? Or is the DA exempt somehow???

good point

[Wambo36]

Considering that these same kind of threats are used all the time to gain leverage at the Capitol, DA Prater is going to be a very busy man. That is if he's serious about this and not just grandstanding.

[Midtowner]

i was wondering about that when I read in the paper that under Oklahoma law it is considered blackmail.The original article mentioned the "threat" of making him a "laughing stock" if the bill was not heard by his committee and passed. That seemed rather absurd. Where the guy may have crossed the line was in threatening to dig up dirt on his wife & family etc. I quess you can go ahead and do the dirt digging/exposing just don't tell them about it in advance and/or expect something in return (payment or hearing the bill)/ Also unclear what the Highway Patrol had to do with it??

That said, under our blackmail laws, wouldn't D.A. Prater's "threat" to the Pardon & Parole Board for them to resign or he was going to file charges qualify as blackmail to? Or is the DA exempt somehow???

It's not really absurd, but there may be some valid defenses here.

The law:

21 O.S. section 1488

Blackmail is verbally or by written or printed communication and with intent to extort or gain any thing of value from another or to compel another to do an act against his or her will:

1. Accusing or threatening to accuse any person of a crime or conduct which would tend to degrade and disgrace the person accused;

2. Exposing or threatening to expose any fact, report or information concerning any person which would in any way subject such person to the ridicule or contempt of society; or

3. Threatening to report a person as being illegally present in the United States, and is coupled with the threat that such accusation or exposure will be communicated to a third person or persons unless the person threatened or some other person pays or delivers to the accuser or some other person some thing of value or does some act against his or her will. Blackmail is a felony punishable by imprisonment in the State Penitentiary for not to exceed five (5) years or fine not to exceed Ten Thousand Dollars ($10,000.00) or by both such imprisonment and fine.

I'll tackle the two issues you raised here in order (whether you realized you raised 'em or not). First, whether this is protected speech under the First Amendment. Blackmail, as a rule, is one of the limited classes of speech which are not considered protected. Also, slander and libel are not protected, nor are "fighting words" and a number of of other things. There may be a First Amendment defense, but just looking at what I've read in the paper, especially considering the apparent admission by Gerhart that he had no evidence that anything had happened and couldn't prove the truth of it, what he was doing was threatening to commit a slanderous/libelous act unless he secured the good Senator's cooperation doesn't help his case at all.

Second, regarding Prater and the Pardon and Parole Board, plea negotiations for crimes are not the same as blackmail. It certainly might feel that way, but without plea negotiations, which are how 99% of our cases are resolved, our courthouses would literally grind to a halt.

What does the Highway Patrol have to do with anything? They highway patrol enforces the law on the capitol grounds. Since this threat apparently occurred on capitol grounds, they would have jurisdiction.

[BoulderSooner]

It's not really absurd, but there may be some valid defenses here.

The law:



I'll tackle the two issues you raised here in order (whether you realized you raised 'em or not). First, whether this is protected speech under the First Amendment. Blackmail, as a rule, is one of the limited classes of speech which are not considered protected. Also, slander and libel are not protected, nor are "fighting words" and a number of of other things. There may be a First Amendment defense, but just looking at what I've read in the paper, especially considering the apparent admission by Gerhart that he had no evidence that anything had happened and couldn't prove the truth of it, what he was doing was threatening to commit a slanderous/libelous act unless he secured the good Senator's cooperation doesn't help his case at all.

Second, regarding Prater and the Pardon and Parole Board, plea negotiations for crimes are not the same as blackmail. It certainly might feel that way, but without plea negotiations, which are how 99% of our cases are resolved, our courthouses would literally grind to a halt.

What does the Highway Patrol have to do with anything? They highway patrol enforces the law on the capitol grounds. Since this threat apparently occurred on capitol grounds, they would have jurisdiction.

thank you for the explanation

[Just the facts]

Well heck, 99% of how things get done in Washington DC is blackmail. I say charge all of them.

[Larry OKC]

Mid: thanks for the info. Am curious about the Highway Patrol connection. i know they protect the Governor, but why is the Highway Patrol enforcing the law on the Capitol grounds? Aren't there Capitol Police for that? Logically, the Highway Patrol should be patrolling the highways and enforcing those laws. No??? LOL

Is it a plea agreement? Would any "plea" or admission of legal admission of guilt be part of the resignation? He basically threatened, "Resign or i will prosecute you" sounds like it fits the definition of blackmail you cited and the paper mentioned???

[zookeeper]

Mid: thanks for the info. Am curious about the Highway Patrol connection. i know they protect the Governor, but why is the Highway Patrol enforcing the law on the Capitol grounds? Aren't there Capitol Police for that? Logically, the Highway Patrol should be patrolling the highways and enforcing those laws. No??? LOL

Is it a plea agreement? Would any "plea" or admission of legal admission of guilt be part of the resignation? He basically threatened, "Resign or i will prosecute you" sounds like it fits the definition of blackmail you cited and the paper mentioned???

Prosecutors can use resignation as a sort of plea bargain, especially with those in the public sector. The reasoning is that resignation will no longer allow you to commit the very job-specific offense you are accused of. In this case, if they resigned they would no longer have the opportunity to violate the open meetings laws which they are accused of.

[BBatesokc]

Prosecutors can use resignation as a sort of plea bargain, especially with those in the public sector. The reasoning is that resignation will no longer allow you to commit the very job-specific offense you are accused of. In this case, if they resigned they would no longer have the opportunity to violate the open meetings laws which they are accused of.

Problem is..... can you legitimately offer a 'plea agreement' when no charges had yet been filed. IMO DA Prater should have charged them and then offered to drop the charges in exchange for their resignation - then it would be a plea arrangement.

[Larry OKC]

Sid: good point LOL

[anniemae]

He threatened to make the guy a laughing stock? Oh no! Good thing he didn't threaten to tickle the guy, he'd be up for the death penalty. What a stupid waste of time and tax money.

[Midtowner]

Problem is..... can you legitimately offer a 'plea agreement' when no charges had yet been filed. IMO DA Prater should have charged them and then offered to drop the charges in exchange for their resignation - then it would be a plea arrangement.

Prosecutorial immunity?

[Midtowner]

He threatened to make the guy a laughing stock? Oh no! Good thing he didn't threaten to tickle the guy, he'd be up for the death penalty. What a stupid waste of time and tax money.

From the statute:

2. Exposing or threatening to expose any fact, report or information concerning any person which would in any way subject such person to the ridicule or contempt of society; or

Absent maybe a 1st Amendment defense, which is a long shot, that's pretty much game/set/match and Gerhart was dumb enough to call a press conference to confess to the local media. From a policy standpoint, I'm happy we do have a criminal penalty for folks who threaten legislators with revealing things like marital indiscretions if they don't advance their agenda. This time, it was about some tinfoil hattery bullcrap about the UN, but what if this had been some sort of tort reform or worker's comp reform where we're talking about rejiggering the rules to protect companies and individuals which kill and maim people from being held accountable?

[positano]

Problem is..... can you legitimately offer a 'plea agreement' when no charges had yet been filed.

Absolutely. Common, and completely ethical, practice, providing the prosecutor has a good faith belief there is prosecutive merit. In fact, defendants routinely request pre-charge offers.

[Edmond_Outsider]

Mid: thanks for the info. Am curious about the Highway Patrol connection. i know they protect the Governor, but why is the Highway Patrol enforcing the law on the Capitol grounds? Aren't there Capitol Police for that? Logically, the Highway Patrol should be patrolling the highways and enforcing those laws. No??? LOL

Is it a plea agreement? Would any "plea" or admission of legal admission of guilt be part of the resignation? He basically threatened, "Resign or i will prosecute you" sounds like it fits the definition of blackmail you cited and the paper mentioned???

Go down south a few blocks and you have a three or four agencies with jurisdiction. Campus police, OHP/capital police, OKC PD, and the ok sheriff. I may be wrong about the sheriff, but there are at least three.

[Edmond_Outsider]

Let me be the first to say, a true tea partier would never be accused of let alone commit a crime so clearly the media has twisted this man's affiliation. He can't be a Christian either so he must be a commie Muslim atheist democrat hippy liberal.

Did I cover all the usual points?

[kevinpate]

Mid: thanks for the info. Am curious about the Highway Patrol connection. i know they protect the Governor, but why is the Highway Patrol enforcing the law on the Capitol grounds? Aren't there Capitol Police for that? Logically, the Highway Patrol should be patrolling the highways and enforcing those laws. No??? LOL

Is it a plea agreement? Would any "plea" or admission of legal admission of guilt be part of the resignation? He basically threatened, "Resign or i will prosecute you" sounds like it fits the definition of blackmail you cited and the paper mentioned???

Capitol Patrol (not Police) is part of the OHP

Capitol Patrol About Oklahoma Capitol Patrol The Oklahoma Capitol Patrol consists of 44 officers, 12 supervisors, and one commanding officer. Patrolling the State Capitol Complex and the State Office Building in Tulsa, officers provide security for the complexes, employees and visitors.

Mailing address
For any information regarding the Capitol Patrol please contact:
Department of Public Safety
Personnel Division
P.O. Box 11415
Oklahoma City, OK 73136-0415

source: http://www.dps.state.ok.us/ohp/aboutcp.htm

[CaptDave]

Let me be the first to say, a true tea partier would never be accused of let alone commit a crime so clearly the media has twisted this man's affiliation. He can't be a Christian either so he must be a commie Muslim atheist democrat hippy liberal.

Did I cover all the usual points?

It was inevitable.....

[boscorama]

I can't help consider Westboro Church of Wichita being called Westboro Baptist Church, comparing that to identity of Al Gerhart as a Tea Party leader. He should be regarded as an independent kook, as should Westboro Church.

[Larry OKC]

kevinpate: thanks, the IIRC, the media kept saying Highway Patrol/Trooper (no mention of Capitol Patrol)

[BoulderSooner]

some interesting thoughts from the ACLU legal director and from an OU law prof

Blackmail vs. political speech: A gray area, Oklahoma legal experts say | News OK

[Larry OKC]

Sooner Tea Party co-founder wins in court | News OK

Sooner Tea Party co-founder Al Gerhart scored a win in court Tuesday when prosecutors dropped an accusation against him that he violated a grand jury secrecy order. Gerhart, 54, of Oklahoma City, still faces a blackmail charge. ...

[ljbab728]

Gerhart is found guilty with a minimal cost, which I think is probably appropriate.

Sooner Tea Party leader found guilty of blackmailing Oklahoma state senator | News OK

Sooner Tea Party leader Al Gerhart was found guilty Wednesday night of blackmailing a state senator.

Gerhart, an Oklahoma City carpenter, did not get any prison time. Jurors decided a $1,000 fine should be the only punishment for the felony offense.