This document came into the hands of O’Keefe’s organization, Project Veritas, which never published anything on the subject and ultimately turned the document over to the police.
A subsequent federal investigation resulted in an FBI raid on O’Keefe’s Westchester County, NY home last Saturday at 6 a.m. to seize his cell phones pursuant to a court order. O’Keefe said he stood handcuffed in his underwear in a hallway as nearly a dozen officers – including one carrying a ram – searched for the phones.
The politically charged episode is shaping up to be a first test of Biden and Attorney General Merrick Garland’s wishes to show greater respect for the media and move away from the confrontational, often hostile, approach favored by the former President Donald Trump and his administration.
“It’s just beyond belief,” said Jane Kirtley, professor of law at the University of Minnesota, former executive director of the Journalists’ Committee for Freedom of the Press. “I’m not a big fan of Project Veritas, but it’s right above. I hope they get a serious reprimand from the court because I think this is just plain wrong.
O’Keefe’s lawyers complained this week to a federal judge that the raid unfairly denied him legal protections for journalists.
“The Justice Department’s use of a search warrant to seize a journalist’s notes and work product violates decades of Supreme Court precedent,” O ‘lawyer wrote. Keefe, Paul Calli, to prosecutors.
O’Keefe’s attorneys demand that the court appoint a special master to oversee the review of information on his phones, which they say contains sensitive details about confidential sources, as well as privileged communication with attorneys for O’Keefe. Project Veritas.
Such a process is rare, but has been used in recent years to sift through information seized in federal investigations into two of Trump’s personal attorneys, Michael Cohen and Rudy Giuliani.
Manhattan-based U.S. District Court Judge Analisa Torres on Thursday issued a one-page order giving prosecutors a day to confirm they have “suspended [their] content extraction and review “from O’Keefe’s cell phones. Torres – a person appointed by President Barack Obama – has yet to rule on O’Keefe’s request for a special master, who is usually a judge retired.
Project Veritas was facing a jury trial in Washington next month in a lawsuit filed by Democracy Partners, a Democratic consulting firm it infiltrated, but on Thursday a judge postponed the trial due to the raids and the ongoing legal battle over them.
At the center of the growing legal storm is a crucial question: Is O’Keefe a journalist in the eyes of the law?
O’Keefe’s lawyers insist that despite his obvious political bias and unorthodox – sometimes misleading – tactics, he is branded a journalist under federal law and Justice Department regulations designed to restrict strongly the use of search warrants and similar measures against members of the media. .
Prosecutors insist they have complied with those demands, but have so far been cautious about whether or not they treat O’Keefe like a member of the press.
“The government hereby confirms that it has complied with all applicable regulations and policies regarding potential members of the media during this investigation, including with respect to the search warrant in question,” wrote on Monday. prosecutors from the US attorney’s office in Manhattan. in a letter to O’Keefe’s lawyers obtained by POLITICO.
At a Senate Judiciary Committee hearing last month, Garland was asked who qualifies as a reporter under Department of Justice policies. “It’s very difficult to make that kind of definition,” he said.
O’Keefe is certainly not a typical journalist. Indeed, several of the main hidden camera exposures in her outfit were directed at employees of major news organizations such as CNN and NPR, seeking to portray them as left-wing activists. (At least one such attempt was foiled in 2017 when Washington Post reporters suspected they were being set up and effectively turned the tide against O’Keefe’s agents.)
While many of O’Keefe’s tactics are unsavory, they are far from unknown in the mainstream press. Hidden camera bites and undercover reporting have fallen into disuse in most mainstream news outlets, but they were once a staple of network television news magazines.
In the 1970s, the Chicago Sun-Times bought a dilapidated bar and fitted it with hidden cameras, successfully capturing city inspectors demanding bribes. NBC’s popular and controversial series “To Catch a Predator” revolves around hidden camera stings.
O’Keefe’s rather open political agenda also conforms to a long American tradition of advocacy journalism. And many conservatives see the mainstream media as ubiquitous in their worldview, even though most claim to be neutral in their reporting.
Some of O’Keefe’s practices seem very unusual. Poorly-worded plea filed in civil action that Project Veritas was due to go to trial next month says O’Keefe encouraged colleague to tell potential donors they could provide “contributions” in the moment. publication of the work of Project Veritas, thereby increasing the specter that O’Keefe was operating primarily under the direct control of political benefactors.
“Real news agencies – be it Fox News, The New York Times, or any other well-known media outlet – don’t go to their donors or advertisers, and don’t ask for their ‘input’ on when the stories are to be broadcast.” lawyers for Democracy Partners said. in the court file.
Kirtley, the Minnesota law professor, cautioned against denying legal protections to Project Veritas because of its political outlook or tactics. She also noted that Trump has repeatedly accused the mainstream media of unethical practices and of having a political ax to grind.
“Trump has been saying this about The New York Times for seven years,” she said. “It is very dangerous to try to categorize people who do journalistic-type work, even if they don’t do it the way I would or the way the mainstream media would or the ethical journalists would,” he said. Kirtley said. .
Another First Amendment advocate, Trevor Timm of the Freedom of the Press Foundation, also said the raids on Project Veritas were concerning.
“Personally, I don’t like Project Veritas at all, but imagine it was a liberal organization under Trump. This is not a good precedent “, he said. wrote on Twitter.
However, legal experts have warned that even though Project Veritas and O’Keefe were considered journalists under the law or Department of Justice policy, it did not give them the right to break the law.
“If they have evidence that [Project Veritas] broke the law, so we’re in a whole different world here, ”Kirtley said.
It is unclear exactly how Biden’s daughter’s diary came into the organization’s possession, but so far there has been no public indication that – if the diary was stolen – the Tory group had planned the theft or helped to achieve it.
Court documents provided to the founder of Project Veritas when his phones were seized last weekend indicate his devices were seized as part of an investigation by prosecutors into a potential conspiracy to smuggle stolen goods through state borders, as well as after-the-fact and mistakenly catching a felony.
What the government specifically told U.S. investigating judge Sarah Cave to obtain the warrant used to seize O’Keefe’s phones is unclear and remains under seal.
But the broad lines of the investigation contained in the warrant fueled concerns among First Amendment supporters, as the Supreme Court ruled in 2001 that the media cannot be held responsible for publishing information that may have been illegally obtained. as long as they got the material legally.
Project Veritas attorney Calli admitted in an interview with Fox News’ “Hannity” last week that O’Keefe’s group “agreed to pay money for the right to publish” the alleged newspaper. by Biden. Calli said lawyers for the sources assured Project Veritas that the log was obtained legally, but that the group’s only information on how it was obtained came from the sources.
Calli told the court in a letter earlier this week that sources told Project Veritas they obtained the diary after Ashley Biden abandoned it at a house in Delray Beach, Florida.
Lawyers following the case say publicly available facts suggest two possibilities: The Justice Department ruled that O’Keefe was not considered a journalist under DOJ guidelines and known federal law under the name of the Privacy Protection Act, or found that he was a member of the media, but that Project Veritas staff may still have committed a crime.
Some terms of the warrant suggest prosecutors are looking into whether a bidding process for the newspaper violated laws against stolen object fencing.
However, Calli insists that even if the FBI suspects O’Keefe or others of crimes, Department of Justice policy required prosecutors to negotiate Project Veritas documents rather than seize them.
“The principles that guided these guidelines are no less applicable when information-gathering activities focus on the president’s daughter,” Calli wrote in the motion calling for a special master.
Emails obtained by POLITICO show prosecutors refused to tell Calli whether Project Veritas research had been approved by a Department of Justice committee that oversees investigations impacting the media.
A spokesperson for the U.S. attorney’s office in Manhattan declined to comment on the office’s handling of the investigation. A spokesperson for the Department of Justice also declined to comment.
Over the past six months, Biden and Garland have introduced extremely protective policies towards the press, protections so strong that some national security professionals have expressed concern. However, the fight with Project Veritas raises questions about the extent of the application of these robust protections by the new administration.
“It’s really a test in this administration to see if they’re going to put their money where they say it is,” Kirtley said. “If they’re trying to be seen as big press freedom champions, that’s a really bad place to start.”