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What Were They Thinking?

AP Photo / Patrick Semansky

The moment you surface either transcripts of the recordings of any calls, you immediately become the target of a federal investigation. And believe me, shield laws -- or shield practices that amount to court deference -- ain't what they used to be. But they were never going to protect you from an investigation into bugging the office of a United States senator. Nor should it.

Now, one might speculate that they were going to use the bug to get leads that they would then report out and surface by other means. But, frankly, to put it mildly that does not sound like the James O'Keefe MO. And filming the bugging as it happened definitely suggests they didn't plan on keeping the thing a secret.

So again, what were they thinking?

Last night I was reading various articles about this incident and looking at interviews O'Keefe did after the ACORN extravaganza. And my hunch is that O'Keefe's head got so spun by the ACORN blowout that he thought that if the stuff he got was good enough that it would trump and get him off the hook even for serious felonies. In a very adoring interview, Chris Wallace did with O'Keefe last year, he asked O'Keefe about the fact that he appeared to have broken, or at least had arguably broken, Maryland state law during one of his sting operations. O'Keefe's answer didn't sound like one you'd give if you were following any legal advice. And the gist of what he said was that he thought his 'get' should and would get him off the hook for any criminal violations he committed in the process of getting it. And he turned out to be right. I know ACORN is suing him. But as far as I know he hasn't faced any legal charges tied to the ACORN stories.

So for the moment, as crazy as it may seem, I'm working on the assumption that O'Keefe really thought he'd get away with a major felony if he got recordings that would sound good enough on Fox and Drudge. Indeed, his very limited public statements still suggest he's thinking in terms of a justification defense. I still have a hard time believing that myself. But it's the only explanation I can square with the facts as we currently know them.

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Josh Marshall is editor and publisher of TalkingPointsMemo.com.