You don’t need to love Project Veritas to be offended by the blatant government leaking of confidential information and the Times’ hypocritical coverage.
You don’t need to love Project Veritas to be offended by the blatant government leaking of confidential information and the Times’ hypocritical coverage.
W ant to understand how outrageous Friday’s New York Times coverage of the FBI’s seizure of Project Veritas’s proprietary documents is? Just imagine what the Times would be saying if what is happening to PV were happening to . . . well . . . the Times itself.
What if federal prosecutors had had the temerity to seek, and managed to obtain, court-authorized search warrants against Times reporters, on the allegation that the paper was in possession of evidence of a crime — perhaps even that some of its reporters were somehow complicit in the crime? The screams of bloody murder from West 40th Street would be audible across America.
Let’s start with the government leaks.
The reason that prosecutors and police are permitted covertly to seek judicial warrants to seize evidence, and that the courts keep the government warrant applications under seal, is that investigations are supposed to be kept confidential. This is to protect people who have not been charged with crimes — their privacy and their presumption of innocence. Government agents are not permitted to publicize such information, much less selectively leak it to the press. The information does not belong to them. They are given a legal privilege to acquire access to it for investigative purposes only.
Moreover, as no one knows better than the Times, there are special considerations when the government targets the press in a search or other information demand. A free-press right is guaranteed in the First Amendment. Amazingly under the circumstances, the Times’ default position — at least when rights of the Times and the rest of the media-Democrat complex are at stake — is that our constitutional system is threatened if the government demands or seizes information from reporters.
In point of fact, this is not true. The First Amendment prohibits the government from telling the press what it can publish — i.e., no prior restraints. Yet members of the media have the same obligations as every person in this country to provide evidence if demanded by a lawful subpoena. The government has the same power to seize evidence from reporters as from ordinary citizens.
Because of the constitutional recognition of free-press rights, the Justice Department (DOJ) has internal guidelines that require high-level approval before prosecutors and the FBI may demand information from the media. The guidelines discourage such demands unless the case is important and there is no alternative source. But that is discretionary government restraint, not mandatory. The media regularly advocate “press shield” laws precisely because the Constitution does not empower journalists to withhold information and guarantee confidentiality to their sources.
So, contrary to a lot of overheated commentary by PV sympathizers in conservative media, it is not a violation of the Constitution for the Justice Department — specifically, the U.S. attorney’s office for the Southern District of New York (SDNY), working with the FBI — to seize documents and other items from PV members. It is stunning, however, to find Times reporters, of all people, cheerleading this investigative gambit and publishing its fruits.
Let’s back up.
Reportedly, the government’s investigation revolves around a diary that was stolen from President Biden’s 40-year-old daughter, Ashley. A website called National File later published what it described as portions and has claimed to have the complete diary.
I confess to being curious about the basis relied on by the Justice Department — evidently, the Trump Justice Department, in October 2020, at then-candidate Biden’s request — to open a criminal investigation. The stealing of personal items from a non-government official is not a federal crime.
To be clear, I am curious; I am not saying it was necessarily improper for the Justice Department to look into the theft. Joe Biden, at the time, was not just a former vice president, for whose protection the government is responsible; he was running for (and favored to win) the presidency. While we don’t know all the relevant facts, it is thus easy to conjure up legitimate federal interests in the robbery investigation.
Sometimes, for example, there is federal-government jurisdiction for robbery — if, for example, stolen items involve federal-government materials or such interstate-commerce items as narcotics. It could be a federal crime to transfer or sell stolen items in interstate commerce. A theft involving a close family member of a high government official (or candidate for high office) could also be part of a bigger scheme; there could be a federal crime if the robbery of his daughter signaled a threat to Biden’s own safety, perhaps, or an effort to blackmail or extort him.
So we’d be getting out over our skis to pronounce that the FBI and federal prosecutors had no business looking into the robbery. Plus, it’s not like the Justice Department went off on its own hook here. A federal district court magistrate judge issued a search warrant. That is only supposed to happen if there is probable cause to believe that a federal crime has occurred (or is occurring) and that the location to be searched probably contains evidence of that crime.
Now, yes, judges sometimes get it wrong on warrants. The vast majority of the time, though, once the pertinent facts are known, it turns out that the judge had a solid legal basis for issuing warrants. And a federal judge knows very well, just as the Justice Department knows very well, that search warrants targeting journalists — even such unconventional journalists as PV staffers — are fraught with constitutional implications. I bet we will learn that the search warrants were sought and granted only after very careful consideration at the FBI, DOJ, and the court. With due respect to PV founder James O’Keefe, we should not assume that his public explanations, which understandably cast PV in a favorable light, are necessarily the whole story here.
All that said, it is not a crime for journalists to come into possession of unlawfully converted documents. And it is to be expected that journalists zealously guard their right to publish such materials — or at least to consider doing so. We see this play out often when Times reporters receive classified leaks from intelligence officials — it being both against the law for government officials to disseminate the information to unauthorized persons, and potentially criminal for the press to publish national-defense secrets (though doubts about constitutionality make such a prosecution highly unlikely).
So why isn’t the press closing ranks around Project Veritas? Because the so-called mainstream media despise PV.
That, too, is to be expected: PV uses against the Left, very much including against left-leaning media, the Left’s own sandbag tactics — e.g., covert investigation, spying informants who pretend to befriend the people they investigate, and selective publication of the fruits of the investigation in order to paint the target in the worst possible light. If Saul Alinsky had been a right-winger, James O’Keefe would be his favorite student. But PV’s unpopularity cannot mean that it does not merit the status of journalist, with all of the free-press protection that status implies.
O’Keefe concedes that PV came into possession of the diary. He says PV elected not to publish it after becoming aware of it through “tipsters.” To the extent that PV had physical custody of the diary, or some part of it, or a copy of it, O’Keefe says, “Project Veritas gave the diary to law enforcement to ensure it could be returned to its rightful owner.”
Regardless of whether that turns out to be a true and complete version of events, it is highly irregular for investigative journalists to be subjected to such intrusive government investigative tactics as search warrants. Furthermore, if what has been reported by the Times is indicative of the scope of the searches permitted by the court, then clearly the warrants were not narrowly tailored to authorize seizure only of evidence related to the stolen diary. To the contrary, the FBI grabbed extensive PV work product and attorney-client communications.
Thus does the Times report today:
Project Veritas has long occupied a gray area between investigative journalism and political spying, and internal documents obtained by The New York Times reveal the extent to which the group has worked with its lawyers to gauge how far its deceptive reporting practices can go before running afoul of federal laws.
The documents, a series of memos written by the group’s lawyer, detail ways for Project Veritas sting operations — which typically diverge from standard journalistic practice by employing people who mask their real identities or create fake ones to infiltrate target organizations — to avoid breaking federal statutes such as the law against lying to government officials.
Two of the Times’ A-team national reporters, Adam Goldman and Mark Mazzetti, then elaborate in detail on advice that PV has received from its lawyer, in connection with PV investigations going back for years. In the main, the advice is what you’d expect: How to navigate the perils of collecting information through ethically questionable tactics that skate along the razor’s edge between the legitimate and the lawless — something you’d be right to suppose that the Times knows a thing or two about.
Significantly, what has been leaked to the Times, and what the Times has editorially chosen to publish, is not confined to the Ashley Biden–diary investigation. The Times is heedless of Project Veritas’s right to counsel and to the constitutionally based confidentiality of its attorney-client communications. Given how the Times would react were the shoe on the other foot, which is hardly inconceivable, this is shocking. Not surprisingly, SDNY judge Analisa Torres, an Obama appointee, has now abruptly ordered the government to stop extracting materials from the PV operatives’ digital files. Plainly, the Justice Department is running roughshod over PV’s right to counsel.
I can only assume the Gray Lady’s judgment is skewed. It is not so much reporting a newsworthy story as exploiting the opportunity for full-bore scrutiny of PV as a journalistic enterprise. And scrutiny with barely disguised disdain: Because of PV’s political motivations, which the Left finds noxious — which, in fact, have resulted in prominent progressive figures and institutions being targeted, sometimes to their humiliation — PV operatives are somehow unworthy of being regarded as reporters, presumed to enjoy constitutionally driven deference from government investigators.
Judge Torres should be infuriated by the leaks to the Times. And she should do more than merely fulminate.
The judge should order the SDNY’s Biden-appointed U.S. attorney, Damian Williams, to provide the court, immediately, with affidavits detailing communications with the media from every prosecutor, FBI agent, and support staffer who is either involved in the investigation or has had access to the items seized from the current or former PV officials. Judge Torres should ask that Attorney General Merrick Garland immediately refer the matter to Justice Department inspector general Michael Horowitz for a thorough investigation of how the search-warrant information came to be transmitted to the Times.
Garland and Horowitz should announce that the Justice Department will conduct the investigation requested by the court, and Horowitz should be given the affidavits so his office can hit the ground running. Judge Torres should ask for periodic updates to stress to the Justice Department and FBI that the court is troubled by the government’s apparently pretextual exploitation of coercive judicial processes in order to fuel media coverage. That coverage has imperiled the constitutional rights of PV members to freedom of the press, due process, privacy, and assistance of counsel.
You don’t need to love Project Veritas to be offended by the blatant government leaking of confidential investigative information and by the Times’ hypocritical coverage: the crown jewel of American journalism branding PV as a lower caste, not entitled to the presumptions of privacy and legitimacy that the Times demands for its own information-collection practices.
Editor’s Note: The original version of this column erroneously identified federal district judge Analisa Torres as the judicial officer who approved the search warrant. The search warrant was actually approved by federal district magistrate judge Anna L. Cave. As the column noted, Judge Torres later ordered the government to stop extracting materials from digital files seized pursuant to the warrant.