Project Veritas Raids: Feds Investigating Ashley Biden Diary as Stolen-Property Case

I had a column over the weekend about the FBI’s startling execution of court-authorized search warrants against locations connected to Project Veritas. Run by the edgy James O’Keefe, PV does investigative reporting that targets Democrats and the political Left. The case is alarming because (a) the bureau appears to be investigating journalists despite free-press concerns, and (b) documents seized by the government have been leaked to the mainstream media.

Specifically, the New York Times published the materials, despite the damage not only to the journalists’ First Amendment rights but also to their right to counsel. The seized materials include advice that PV’s lawyers have given regarding the legality of information-gathering methods. The Times included this advice in its reporting — choosing to expose PV’s internal deliberations rather than protect the confidentiality of PV’s attorney-client communications.

There have been important revelations since the weekend.

I made a mistake in the column by assuming that because Southern District of New York (SDNY) Judge Analisa Torres had ordered the government to stop extracting data from PV’s digital files, she must also have been the judge who authorized the warrants. Instead, the FBI and the SDNY prosecutors were granted the warrant by U.S. district court magistrate judge Sarah L. Cave. Magistrate judges are not full-fledged Article III judges; they are judicial officers appointed by the court for eight-year terms to help district judges with matters such as the issuance of warrants, pretrial motions, discovery disputes, and so on.

The warrant has been publicly disclosed, though the probable-cause affidavit based on which it was authorized remains under seal (as is standard practice — it is generally withheld until it is provided to the defense in discovery if an indictment is filed, as it usually is in an investigation in which the government has gone to the trouble of getting court warrants). A warrant against PV is, for example, appended to this letter-application by the Reporters Committee for Freedom of the Press, seeking disclosure of the Justice Department’s warrant application (which is usually written by a prosecutor based on information from the FBI, an agent of which swears to the assertions in a supporting affidavit).

The warrant appears to confirm that the FBI is conducting an investigation into the theft of a diary from Ashley Biden, President Biden’s daughter. As I related in the column, Ms. Biden apparently claims that the diary (among other items) was stolen from her in a burglary. Generally, burglary is not a federal crime.

In a search-warrant application, the government must describe the violations of federal law it contends have been committed. To issue a search warrant, the judicial officer must find that there is probable cause to believe that a crime has been — or is being — committed and that evidence of the crime will be found in the place the investigators seek permission to search.

In the PV warrants at issue, the government said it was investigating violations of federal penal laws relating to conspiracies to (a) transport stolen property across state lines and (b) possess stolen goods, interstate transportation of stolen property, aiding and abetting, accessory after the fact, and misprision of a felony. One would think that journalists would find this disturbing, given that in their reporting processes they frequently and confidentially become aware of information that may have been purloined — at least allegedly.

In the column, while I conveyed curiosity about what the government claimed was its jurisdiction to investigate the burglary, I acknowledged that federal jurisdiction can be triggered if stolen property is transferred in interstate commerce. That is obviously what the FBI and SDNY prosecutors are getting at in the warrant’s allusion to the interstate transportation and receipt of stolen goods, as well as aiding and abetting — a concept that makes someone who intentionally assists the commission of a crime guilty of that crime.

“Aiding and abetting” is a staple of federal prosecutions. More rarely investigated or charged is the crime of accessory after the fact. In that offense, Person A has committed some crime, and then Person B, the “accessory,” takes actions that help Person A evade apprehension.

Even more rarely charged is misprision: This offense holds that if A has committed a federal felony and B knows about it, then B has a legal obligation “as soon as possible [to] make known the [felony’s commission] to some judge or other person in civil or military authority under the United States.” Prosecutions are highly unusual because, while people grasp that they must not violate the law themselves, and that they must testify about crimes they’ve witnessed or learned of if subpoenaed by the government, they are very resistant to the notion that they must tell the government if they learn of a crime, rather than mind their own business if they choose to.

One might think that journalists would find a misprision investigation eye-popping as applied to other journalists.

Plainly, one theory the Justice Department is pursuing is that someone stole the diary of the president’s daughter, and even if that wasn’t a federal crime, investigative journalists should be subjected to criminal scrutiny – including FBI raids of their homes or offices – if they learned about the theft and the transfer of the stolen goods and failed to report it to the authorities. It’s probably no surprise that the Times is willing to help the government broadcast its investigation of PV, thereby adding to the negative image of PV. After all, the Times is currently defending itself against a defamation lawsuit brought by PV. Nonetheless, I’d be surprised if the paper believes its own reporters are obliged to report crimes to the government upon discovering them.

This is a strange era, in which partisan and ideological loyalties induce people to undermine their own institutions. We see it in government a great deal. Members of Congress, for example, frequently choose to empower presidents of their own party at the expense of Congress’s own power and prerogatives. And we are seeing it in journalism: PV is right-wing and pro-Trump, so some legacy-media outlets seem weirdly delighted by government investigative tactics that could ultimately be used against these very outlets if the PV investigation were to become a precedent.