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“Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures,” the American Civil Liberties Union (ACLU) stated days after FBI raids against the organization were reported.
In early November, the United States Justice Department executed search warrants against three employees of Project Veritas—James O’Keefe, Spencer Meads, and Eric Cochran. They were supposedly searching for Ashley Biden’s diary, which authorities suspect was stolen. (Ashley is President Joe Biden’s daughter.)
The search warrant against O’Keefe, founder of Project Veritas, referred to a conspiracy to “possess stolen goods” and suggested “stolen” material was transported across state lines.
FBI agents seized two iPhones from O’Keefe during the raid on November 6. O’Keefe claims the devices contained information on donors and confidential sources, as well as reporter notes.
On November 11, Judge Analisa Torres instructed the government to “pause its extraction and review of the contents” of O’Keefe’s phones until she rules on whether a “special master” should be appointed to review what could be used as evidence.
Project Veritas engages in journalism with hidden microphones and cameras to discredit progressive organizations and establishment media outlets. It has received funding from Donors Trust, which has given hundreds of millions of dollars to conservative and libertarian groups from wealthy individuals. They mask donors’ identities to help them avoid any backlash.
The actions of Biden’s Justice Department evokes comparisons to the unprecedented Espionage Act prosecution against WikiLeaks founder Julian Assange, which was launched by President Donald Trump’s Justice Department and continues under Biden.
However, the personalities and politics of O’Keefe and Assange are irrelevant to whether the Justice Department committed a significant overreach that jeopardizes press freedom.
If there is any reason for a comparison, it is that the government has granted itself the power in both cases to decide who is and is not a journalist.
Katherine Jacobsen, the U.S. and Canada program coordinator for the Committee to Protect Journalists, stated, “The government must provide a clear link between members of Project Veritas and alleged criminal activity before searching their homes for information about source material.”
"Conducting raids without this kind of link sets a dangerous precedent that could allow law enforcement to search and confiscate reporters’ unpublished source material in vague attempts to identify whistleblowers.”
Reporters Committee for Freedom of the Press (RCFP) was concerned enough to file a motion requesting a judge unseal the "search warrant application, supporting affidavit, and other judicial documents related to law enforcement’s search of O’Keefe’s home."
There is, as of November 17, no evidence to indicate that O’Keefe or anyone employed or contracted by Project Veritas stole the diary.
Project Veritas reportedly vetted the diary but never published any of the contents. They were never able to “authenticate” that it was Ashley Biden’s diary, according to O’Keefe.
Journalists have a First Amendment right to publish stolen information so long as they do not actually engage in the act of stealing the information.
Given the government’s apparent justification for a search warrant, if a journalist obtained an envelope of documents from a corporate or government whistleblower in one state and then traveled back to their home in another state, the FBI could seize that journalist’s electronics or other personal property, which is troubling.
Back in July, the Justice Department adopted new media guidelines that were intended to prevent abuses of power that occurred when the Trump administration seized records from journalists at the Washington Post, CNN, and the New York Times.
RCFP noted that Attorney General Merrick Garland established a “flat prohibition on the seizure of records of journalists ‘acting within the scope of newsgathering activities.” Any effort to seize journalists’ records would need to be approved by the deputy attorney general.
Yet if the Justice Department does not believe a reporter acted within the scope of legitimate “newsgathering activities,” they may exclude that reporter from prohibitions in the guidelines.
Another guideline, which was adopted by Attorney General Eric Holder [PDF], recommends negotiations with journalists or media organization representatives when considering whether to subpoena records unless the attorney general determines “advance notice and negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security or present an imminent risk of death or serious bodily harm.”
“The possibility that notice and negotiations with the media, and potential judicial review, may delay the investigation will not, on its own, be considered a compelling reason [to not notify news media],” Holder established.
It is possible the Justice Department was afraid Project Veritas would selectively leak details of the investigation and fuel disinformation. Regardless, there is no dispute that the organization turned over the diary to authorities and was cooperative prior to the FBI raids.
On November 9, O’Keefe appeared on Sean Hannity’s Fox News program with Paul Calli, his attorney. O'Keefe said the person with the diary had a lawyer, who negotiated with Veritas’ in-house counsel. That resulted in a written agreement, and the “source again affirmed that [they] had lawful possession of the source material.”
“In exchange for that, Veritas agreed to pay money for the right to publish the material,” O’Keefe added.
Calli’s law firm complained to the judge on November 15 that the Times had published internal legal memos from Project Veritas, which they believe were leaked from phones that the FBI seized.
“Our concern about such leaks is heightened because the New York Times is Project Veritas's adversary in pending civil litigation—Project Veritas sued the New York Times in Supreme Court, Westchester County, and has defeated the New York Times' motion to dismiss," according to an email obtained by Newsweek.
The Times described the memos as documents that show the ways the organization gauges “how far its deceptive reporting practices can go before running afoul of federal laws.” But nothing highlighted pointed to any illegal acts committed by Project Veritas.
When employees sought to secretly record personnel at the FBI, Justice Department, and other agencies to expose “anti-Trump bias” in the U.S. government, they were advised by their media lawyer not to try and obtain information related to national security because that might violate the Espionage Act.
Their media lawyer additionally warned Project Veritas employees to be careful of making false statements to federal officials. If they attended campaign events where the Secret Service vetted attendees, they were urged to use their real names.
“All it proves is that Project Veritas is an honest and thoughtful journalistic organization that sought legal advice before making various publications,” Harmeet Dhillon, another attorney for O’Keefe, asserted while appearing on Fox News.
Dhillon continued, “That’s what FOX News does. That's what the New York Times does, and that's what every major journalism outlet does.”
Indeed, numerous well-funded media organizations retain lawyers to help them navigate the law when engaged in newsgathering and publication decisions, especially on matters that could draw the ire of authorities, influential organizations, or powerful individuals.
“I would assume both of you are pretty familiar with Daniel Ellsberg and the Pentagon Papers case and the New York Times obtaining stolen, top secret documents that they were publishing," Hannity said at the end of the interview segment. "They actually set a precedent, and the U.S. Supreme Court in a 6-3 decision [said that] they had the right to publish it even though that was stolen material."
“Do you see similarities?” Hannity asked.
“It's entirely similar. There's no exception to Mr. O'Keefe and Project Veritas,” Calli responded. “The right to take the material, knowing it was stolen, the right to seek comment, the right to investigate, and ultimately the right to publish.”
Project Veritas positions itself as an outfit on the frontline of a culture war. They often champion pseudo-whistleblowers, who have a lot to say to advance their agenda but lack evidence of corruption.
The idea that the Justice Department has given the public a good reason to side with Project Veritas is maddening. Yet they are the latest target in a war on journalism, which has sharply escalated throughout the past decade.