Project Veritas battles for journalism, and against it

Early on the morning of November 6 last year, FBI agents armed with a search warrant raided the Mamaroneck, New York, apartment of James O’Keefe, the right-wing provocateur who founded the website Project Veritas. While O’Keefe stood handcuffed in his underwear, agents seized two cellphones as part of a grand jury investigation related to the alleged theft, in 2020, of a diary belonging to Ashley Biden, the president’s daughter. Two days earlier, agents had also searched the homes of two men associated with Project Veritas.

In subsequent filings in the Southern District of New York, the group’s lawyers portrayed Project Veritas as the victim of an attack on the free press, which is typically protected from subpoenas and searches. In a video condemning the raids, O’Keefe said Veritas —known to publish surreptitiously recorded and selectively edited videos to embarrass liberals and mainstream media outlets—had received the diary from “tipsters” and ultimately declined to publish it. He called on “all Americans, and especially all journalists, to stand with us for the right to free speech and the free press.”

But a little more than two weeks later, after the New York Times published an article about Veritas based on leaked internal legal memos, the group was making a different argument. On November 23, O’Keefe sat in the wood-paneled gallery of a Westchester County trial court while his lawyers in a separate, ongoing defamation case against the Times asked the judge to uphold an order blocking the Times from further disseminating  Veritas’s legal memos, citing attorney-client privilege. Dean Baquet, the Times’ executive editor, denounced the order, signed on November 18, as an unconstitutional example of prior restraint, a form of censorship.

Both the federal investigation and the defamation lawsuit test the limits of what counts as journalism and the privilege that status confers. But the seeming contradiction between Veritas’s positions in them has left media analysts wondering if O’Keefe can really have it both ways—and what it would mean for the future of those journalistic privileges if he did.

“Trying to say, ‘Hey, we’re going to get the protection of the media here, and how dare you raid our newsroom? But we’re going to go and try to get a prior restraint against the media’? It just doesn’t seem to me to be very principled,” said Lucy Dalglish, dean of the University of Maryland’s college of journalism.

At the Westchester hearing, I had hoped to ask O’Keefe about all this directly. But just as quickly as he’d slipped into the courtroom during the judge’s opening remarks, he sneaked out before the arguments were over. When I later reached him over text, he responded by emailing me a 1,688-word statement: the transcript of a video in which he argued, as far as I could discern, that the difference was that “defamation is not a First Amendment right.” Through his lawyers, he declined an interview to answer specific questions.

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Others associated with Veritas say they don’t see an incongruity between one matter and the other. “Equating a routine prohibition on a litigation adversary from obtaining and using their opponent’s undisclosed attorney-client communications”—what Veritas claims is happening in the Times case—“with an unprecedented unconstitutional raid of journalists for the alleged crime of conducting journalism is a repugnant betrayal of freedom of the press,” Jered Ede, Veritas’s chief legal officer, wrote in an email.

CJR and others, the Veritas team seems to believe, would be idiotic to think otherwise. In another email to me, O’Keefe lawyer Paul Calli, who had apparently seen me in the courtroom, composed an impromptu mocking poem. 

Ya’all [sic] don’t hold a candle to James O’Keefe.

Respectfully, you looked confused today, with all the First Amendment talk.

Try to keep up, Caleb. I view this as a teachable moment, for you.

Later, Calli added that I was “drunk from the liberal koolaid” (sic) and was the “poster child for the CJR being a joke.” 

On Christmas Eve, the trial court judge, Justice Charles Wood, ruled in favor of Veritas, leaving the prior-restraint order in place and ordering the Times to destroy or turn over its copies of the privileged documents. The legal memos were not a matter of public concern, Wood wrote, because “it is not the public’s business to be privy to the legal advice that this plaintiff or any other client receives from its counsel,” and the Times was therefore not protected by the First Amendment to publish them. 

The Times editorial board, widely supported by media observers across America, called the ruling “dangerous” and the rationale “breathtaking.” If the ruling stood, they wrote, “news organizations could be routinely blocked from reporting information about a person or company simply because the subject of that reporting decided the information might one day be used in litigation.”

On December 27, the Times appealed the ruling, and the following day, an Appellate Division judge granted a stay of Justice Wood’s order to destroy or turn over the memos while the appeal is considered. 

Even as the matters continue to develop, both have been important fundraising opportunities for Veritas. “These battles come at a high cost,” read one recent email soliciting donations. On the organization’s homepage, a fundraising progress bar for Veritas’s legal fees in the Times case is ticking more than halfway toward its million-dollar goal. O’Keefe even reenacted the FBI raid onstage last month, as a chest-pumping dance number at a conservative conference in Arizona.

In 2020, according to public filings, Veritas received nearly $22 million in donations, up from $12 million in 2019. According to filings identified by Documented, a watchdog group, the 2020 funding was led by the Bradley Impact Fund, a nonprofit focused on conservative causes like perceived election fraud. Veritas also recently hired its first lobbyist, filings show, and spent almost $2 million on legal fees in 2020, much of it to the firm of Paul Calli.

On Christmas Day, still celebrating the legal victory, a member of the Veritas team tracked down the Times’ Baquet at what appears to be Los Angeles International Airport. In a video uploaded to YouTube, he repeatedly asks Baquet for comment on the ruling. “Merry Christmas,” Baquet says. “You do it to raise money. I hope you use that quote.” The first item in the description below the video is a link to donations.

 

In the lead-up to the 2020 presidential election, two sources acting through an intermediary contacted Veritas to say they possessed items including a diary they said belonged to Ashley Biden. The sources told Veritas the items had been obtained legally, abandoned at a residence in Florida where the president’s daughter had previously lived. Veritas paid the sources for the right to publish the diary, its lawyers wrote.

But because Veritas couldn’t confirm the diary’s authenticity or the veracity of its contents, O’Keefe said in a video after the FBI raid, it killed the story. In an email to Veritas staff on October 12, shared in a legal memo by Veritas’s lawyers, O’Keefe wrote that publishing the story could be perceived as a “cheap shot” and that “our actions so far are entirely defensible.”

In the final days leading up to the presidential election, a right-wing publication, National File, would eventually publish the diary entries, which it said were obtained by a “whistleblower” from Veritas who was upset that Veritas hadn’t run them.

Veritas’s lawyers wrote in a filing that they attempted to return the diary to a lawyer for Ashley Biden, who refused to verify it belonged to her, and then arranged to deliver it to law enforcement in Florida around Election Day. Two anonymous sources told the Times that the Trump Justice Department under Bill Barr launched an inquiry into the diary after representatives for Ashley Biden reported a burglary in October 2020. 

Around the same time, Veritas sued the Times for defamation in a Westchester County trial court over the way it characterized Veritas’s video work, which ran in September 2020 and alleged voter fraud in Minneapolis. The defamation case was stalled while the Times continued its attempts to have it dismissed.

Following the FBI search of O’Keefe’s apartment, many journalists and press freedom organizations answered O’Keefe’s call for support. The American Civil Liberties Union, the Committee to Protect Journalists, and the Freedom of the Press Foundation all released statements decrying the raid. 

Under Bartnicki v. Vopper, a landmark 2001 Supreme Court ruling that media lawyers are wont to invoke like a mantra, journalists aren’t liable for publishing stolen material, so long as they weren’t involved in its theft. In court filings, Veritas has denied any direct involvement in acquiring the allegedly stolen diary and cited the Bartnicki ruling.

“Maybe people are rightly skeptical of wholly trusting James O’Keefe’s word, given his history,” said Trevor Timm, executive director of the Freedom of the Press Foundation. “At the same time, I’m definitely not going to take the Justice Department’s word for it,” Timm added, citing its recent history of surveilling journalists under the Trump and Obama administrations. “I believe that journalists, even if they hate Project Veritas, should side with them until we have more evidence.” 

A judge has denied a motion, filed by the Reporters Committee for Freedom of the Press, to unseal affidavits related to the search warrants of O’Keefe and his associates, citing the integrity of the ongoing investigation.

As unlikely allies were lining up behind Veritas, the Times published its article on November 11 about the group’s tactics. The story, headlined “Project Veritas and the Line Between Journalism and Political Spying,” included excerpts from internal communications between the group and its legal counsel that the Times said showed “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.” Bill Grueskin, a Columbia Journalism School professor, who previously covered Veritas’s defamation lawsuit against the Times for CJR, reviewed the memos and was quoted in the story. 

In the hours before the story ran, the Times also published some of those communications directly on its website. “A selection of the documents, which we did not intend to publish, was inadvertently published due to a technical issue and then unpublished,” a Times spokesperson told CJR.

Veritas’s lawyers said the story violated attorney-client privilege and circumvented the discovery process, which had yet to begin. Justice Wood, the Westchester trial court judge, agreed. On November 18, he ordered the Times to “refrain from further disseminating or publishing any of Plaintiff Project Veritas’s privileged materials in the possession of The New York Times, or its counsel”—to stop publishing stories as it would otherwise—and “cease further efforts to solicit or acquire Plaintiff Project Veritas’ attorney-client privileged materials”—to stop newsgathering. 

First Amendment experts let out a collective gasp. In 1976, the Supreme Court called prior-restraint orders like this one “the most serious and the least tolerable infringement on First Amendment rights,” legal only under exceedingly rare circumstances, such as to protect troop movements during wartime or to stop the incitement of violence.

The Times immediately appealed the order, citing the 1971 Pentagon Papers case—the last prior-restraint order against the Times, which was overturned by the Supreme Court. The Times’ lawyers argued in a subsequent filing that, if such an order were legal, “any individual or organization wanting to limit unfavorable news coverage could simply file a libel suit over an earlier story and then use discovery orders to censor or prevent future reporting.” An appellate court nevertheless upheld the order, prompting many of the same press freedom groups that had just backed Veritas to now defend the Times against it.

 

After the raid on his apartment, O’Keefe and his lawyers began to argue, without citing specific evidence, that the FBI was leaking material gathered during the investigation to the Times, an accusation that government lawyers called “pure speculation.”

A judge in the Southern District of New York denied Veritas’s request to investigate the alleged leaks, but she did agree to appoint an independent third party, known as a special master, to oversee the extraction of data from O’Keefe’s phones—a victory for Veritas. 

“First Amendment, First Amendment, First Amendment,” Calli wrote to me in an unprompted celebratory email. “Revive the lost glory of the CJR and take a stand for the First Amendment. History will judge you well.”  

 

Raids on journalists are rare in part because Justice Department guidelines have limited the use of subpoenas and court orders against members of the news media to “essential” application. In July, Attorney General Merrick Garland went further, responding to criticism of the Justice Department’s surveillance of journalists under the Trump administration by pledging to no longer use compulsory legal process” against journalists “acting within the scope of newsgathering activities” at all.  

But the Justice Manual, a departmental handbook, doesn’t directly define who qualifies as news media, and thus receives those protections, instead favoring a case-by-case approach. To make its evaluation, the department employs a “News Media Policy Consultation” form, which (as revealed by a Freedom of Information Act lawsuit filed by Timm and the Knight First Amendment Institute at Columbia University) lays out twelve factors for law enforcement agents to consider, including whether the individual possesses press credentials and whether they “primarily [report] facts, as opposed to expressing opinion.” 

In the case of Veritas, according to filings, prosecutors determined that O’Keefe didn’t meet its standards for news media. “Project Veritas is not engaged in journalism within any traditional or accepted definition of that word,” US Attorney Damian Williams wrote. “Its ‘reporting’ consists almost entirely of publicizing non-consensual, surreptitious recordings made though [sic] unlawful, unethical, and or/dishonest means.” Williams cited the recent ruling of another judge who, citing statements made by O’Keefe himself in his 2018 book, said Project Veritas could be called a “political spying operation.”

But decisions that narrowly define who counts as a journalist can be dangerous, press freedom experts contend, potentially excluding parties like freelancers and new forms of media. And just because Project Veritas is nakedly partisan, pays for information, and uses undercover reporting techniques doesn’t mean it can never do any journalism worthy of First Amendment protection. “If, in fact, the argument was, ‘Well, you’ve got an ideological agenda, so you can’t be a journalist,’ I just think that’s wrong,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. “There’s always been partisan journalism in this country. I mean, that’s what the drafters of the Constitution and the First Amendment were familiar with.”

Members of the news media are also guarded by the Privacy Protection Act, a 1980 law that sets a high bar for cases of search and seizure that could hinder press freedom. In contrast to the Justice Department guidelines, the Privacy Protection Act doesn’t define journalists as a class, but seeks to safeguard journalism as an act, protecting the “work products” of any “person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Still, the Privacy Protection Act “doesn’t give the media a complete and utter pass,” said Dalglish of the University of Maryland. “What it says is, if they believe that you were engaged in illegal activity, you can’t hide behind that law to escape investigation of that illegal activity.”

No charges have yet been brought against Veritas, but a federal judge did find the government established probable cause to execute the search warrants related to federal crimes, including “conspiracy to transport stolen property across state lines,” “interstate transportation of stolen property,” “aiding and abetting,” and “accessory after the fact.”

Lee Levine, a media lawyer who argued the Bartnicki case before the Supreme Court, called charges like those “a real stretch.” The Bartnicki ruling, Levine said, pertains to alleged crimes committed before material is acquired by a potential publisher. “After the fact seems to me to be an exception that swallows the rule,” said Levine. Transporting a stolen document across state lines, for example, especially electronically, could be a charge leveled against many journalists otherwise protected by Bartnicki.

 

At the November 23 hearing in Westchester, an opportunity to further consider the prior-restraint order against the Times, Justice Wood framed the question before him as a contest between competing rights. “There are two bedrock principles of our republic at issue here: attorney-client privilege and freedom of the press,” Wood said. “However, both of those bedrock principles do have their exceptions, which may or may not be implicated in this particular case.”

Libby Locke, a lawyer for Veritas who won a high-profile defamation case against Rolling Stone in 2016, argued that attorney-client privilege should take priority. She also suggested that the court should hold hearings to determine how the Times had obtained the legal memos in the first place.

Joel Kurtzberg, outside counsel for the Times, said in the hearing that the memos in the article were “independent of this case and not for use in this case,” and argued a Bartnicki defense for publishing the excerpts. But Bartnicki, as Justice Wood pointed out at the hearing, did not involve attorney-client privilege.

“Truth be told, there are some ambiguities in Bartnicki,” Levine previously told me when I discussed the seizure order with him. Those might include, as the judge appeared to argue, how a court should balance the First Amendment and public interest against attorney-client privilege.

On December 14, at the request of the Times’ lawyers, Wood subtly amended the order, explicitly allowing the Times to speak to Veritas’s lawyers for comment and allowing the paper to publish articles about Veritas including attorney-client-privileged information—provided that material became public independently of the Times, such as if it were published by another outlet.

Two days later, on December 16, the Times published an investigative story detailing how Ashley Biden’s diary may have been obtained—though it did not fully explain Veritas’s involvement, and Veritas declined to clarify. 

Finally, after a monthlong wait that confounded First Amendment experts, Justice Wood issued his Christmas Eve ruling to uphold the prior restraint, ordering the Times to return or destroy its copies of the memos (and attempt to retrieve copies from Grueskin and any other third parties with whom it had shared them). “Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” Wood wrote. “Our smartphones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some things are not fodder for public consideration and consumption.”

That’s the problem here,” Kirtley told me after the ruling. “You’re dealing with attorney-client-privileged information, and judges consider that close to sacred.”

The Appellate Division court will receive a response from Veritas in the appeal by January 14 and, according to experts, is likely to reach a different conclusion. It’s the equivalent of a judicial layup blown over and over again,” said Timm. “The fact that the prior restraint is still active is constitutionally unconscionable.”

 

While Calli had apparently soured on CJR, there was a time not long ago when Veritas’s tone had been somewhat warmer. In 2018, O’Keefe sent a signed copy of his book to Kyle Pope, the editor and publisher of CJR. “Kyle, we’re on the same team!” O’Keefe wrote on Veritas stationery. 

In a sense, he’s right. At the end of the day, the rights of New York Times journalists can hinge on cases involving actors like Project Veritas,” said Timm. The reverse is also true: Veritas’s rights can depend on the rights of the Times. That’s why, said Timm, “in this potential press freedom battle with the Justice Department, it’s hypocritical to turn around and call for the infringement of the rights of a reporter they don’t like.” Set that kind of precedent, and everyone loses.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Caleb Pershan is a CJR fellow.

TOP IMAGE: DALLAS, TEXAS - JULY 09: Project Veritas founder James O'Keefe looks on during the Conservative Political Action Conference CPAC held at the Hilton Anatole on July 09, 2021 in Dallas, Texas. CPAC began in 1974, and is a conference that brings together and hosts conservative organizations, activists, and world leaders in discussing current events and future political agendas. (Photo by Brandon Bell/Getty Images)