Poor Amy Gardner. She is the fiction writer at the Washington Post who bungled the story on President Donald Trump’s conversation with Georgia state election officials.
Gardner’s fake news account made it seem that Trump was urging Georgia officials to illegally reverse the results of the election by hunting down fraud, real or imagined.
We now know her source for that information was Jordan Fuchs, a deputy in the office of the Georgia secretary of state.
The Washington Post has since published a thick correction to Gardner’s fictional account.
But Gardner’s article did what it was designed to do. It contained secret code words to activate all of the zombies, like crazy Dareh Gregorian at NBC, who had already succumbed to Trump derangement syndrome – “Trump Committed A Crime.” No decoder ring needed.
This derangement fed congressional Democrats, contributing to their second ridiculous impeachment of the president.
Of course, we know now that Trump didn’t say what Gardner said and hence no crime was committed.
Or was it?
Georgia is a one-party state. That means it is in fact legal to wiretap a conversation even if only one party to the conversation knows it is being recorded. Georgia Code Section 16-11-66 makes an exception to the general prohibition on electronic eavesdropping, excluding by statute “intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”
That means if one person on the call with the president was recording the call, it has an exception to the broad eavesdropping prohibition.
But that’s not the end of the matter, and you can’t count on Gardner at the Washington Post or NBC to give you the whole story.
Georgia might absolve the person actually running the tape machine, but it also criminalizes in a stand-alone law the act of giving the tape (or electronic file) to a third party.
In other words, whoever published or provided the content to the Washington Post might not enjoy the same protection of the one-party exception when they decided to give the tape or file to someone else. Georgia Code 16-11-62 prohibits:
6) Any person to sell, give, or distribute, without legal authority, to any person or entity any photograph, videotape, or record, or copies thereof, of the activities of another which occur in any private place and out of public view without the consent of all persons observed; or
(7) Any person to commit any other acts of a nature similar to those set out in paragraphs (1) through (6) of this Code section which invade the privacy of another.
Give. Distribute. That’s not the same verb as “intercept.”
Put very simply: Georgia might allow someone to intercept a wire transmission, but it has a criminal statute that makes it a crime to give that interception to a third party, like the Washington Post.
Now, one might argue that the one-party exception to the wire-tap statute also consumes the prohibition on “sell, give or distribute.” That’s not clear. Georgia courts have not squarely confronted the issue of what it means to “give or distribute.”
Those who can read English might have an opinion, however.
But Georgia courts have been pretty clear on the broad prohibition against wiretapping and the threat it poses to privacy rights. The Georgia Supreme Court in Ransom v. Ransom even prohibited a spouse from secretly recording another spouse inside the home:
We conclude from our reading of this legislative history that the legislature intended for the statute to apply to protect all persons from invasions upon their privacy, including invasions made upon the privacy of one spouse by the other in a private place. The legislature has not drawn an exception from the statute’s prohibition for one who, in a clandestine manner, records the private telephone conversations of his spouse which occur in a private place, and we decline to do so.
Oh, by the way, violations can get you free room and board for a few years at Reidsville. Georgia Code Section 16-11-69 states that any “person violating any of the provisions of this part shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years or a fine not to exceed $10,000.00, or both.”
None of this is to say that any particular person committed any crime. But had President Donald Trump been the one to record the conversation with Georgia election officials and then he or his staff released it to PJ Media or Breitbart, we all know what Amy Gardner’s lede would be at the Washington Post.
We all know that CNN would have offered wall-to-wall coverage on Georgia’s prohibition on selling or giving recorded wire conversations to third parties. I’d wager even Amy Gardner knows it.