Did the Justice Department overreach in raiding James O’Keefe’s home?

The FBI on Nov. 6 searched the Mamaroneck, N.Y., home of James O’Keefe, the founder of the video-sting group Project Veritas. As reported by the New York Times, authorities also searched the homes of two O’Keefe associates. It’s all part of an investigation stemming from the reported theft last year of the diary of Ashley Biden, the president’s daughter.

Addressing the FBI’s action last week, Fox News host Tucker Carlson attributed the raid to O’Keefe’s possible role in “embarrassing the president’s kid” and called on free-speech advocates to speak up. “Maybe someone should say something — maybe,” Carlson said.

Something has, indeed, been said. Trevor Timm, the executive director of the Freedom of the Press Foundation, tweeted this past Wednesday:

Before plowing into the legal wrinkles, here’s a summary of the facts surrounding the case: Before the 2020 election, a conservative website called the National File published pages of an item purporting to be Ashley Biden’s diary. The Trump administration’s Justice Department launched an investigation, according to the Times, after a Biden family representative claimed that some of Ashley Biden’s items had been stolen. On Nov. 5, the Times reported that federal agents had searched two locations in an operation that targeted “people who had worked” with Project Veritas in connection with the diary; O’Keefe disclosed that his group had received a grand jury subpoena. Next came the raid at O’Keefe’s home, where agents seized two of his phones.

Project Veritas has told its version of events — first in a Nov. 5 video, then in a Sean Hannity interview with O’Keefe and his lawyer Paul Calli, and finally in a 16-page motion to U.S. District Judge Analisa Torres. In 2020, according to the filing, two tipsters contacted Project Veritas and claimed to have obtained items that Ashley Biden had allegedly left behind in a Florida location. The source claimed that it had “lawful possession” of the material, Calli said on “Hannity,” with O’Keefe noting that his group didn’t “know whether it was stolen or not.”

Project Veritas purchased the rights to the diary, according to Calli. Then the organization made efforts to authenticate the diary, O’Keefe said in the video. But it ended up killing the story, “because, in part, we could not determine if the diary was real,” O’Keefe said.

The group tried to return the diary to a lawyer for Ashley Biden, said O’Keefe, but the lawyer declined to verify her ownership. So Project Veritas “arranged” to have the item delivered to law enforcement. “Despite an internal belief that the diary was genuine, Mr. O’Keefe and Project Veritas could not sufficiently satisfy themselves with the diary’s authenticity such that publishing a news story about it would meet ethical standards of journalism,” Project Veritas wrote in its filing.

As to how National File ended up with the diary: It “claimed to have received the diary from a ‘whistleblower’ at another news organization that had chosen not to report on the diary,” alleges the Project Veritas motion. Tom Pappert, National File’s editor in chief, said that his organization heard from an individual he identified as a whistleblower at Project Veritas who was “upset by the … decision to spike a story that had been thoroughly vetted, in the words of our whistleblower.” That vetting, claims Pappert, included a phone call that Project Veritas had taped with Ashley Biden in which she confirmed that the diary was hers. (Attempts to secure comment from a Biden family representative were unsuccessful.)

Shortly before National File published the purported diary pages, it called O’Keefe to ask for the recording of that call, according to Pappert. Asked how O’Keefe responded, Pappert said, “not happily.” Nothing that National File learned from the whistleblower, said Pappert, “could be construed as criminality” on part of Project Veritas.

Harmeet Dhillon, a lawyer for Project Veritas, emailed, “Project Veritas does not know how National File obtained the materials it published. Project Veritas does not employ the person National File has publicly suggested is the whistleblower.” (Pappert maintains his organization hasn’t suggested the identity of the whistleblower.)

So were the feds justified in conducting the raids? Project Veritas says no — that it was engaging in First Amendment newsgathering activities that should be protected from “heavy-handed tactics” (per its filing). “It appears journalism itself may be on trial,” O’Keefe said in the Nov. 5 video.

Such activities do enjoy protection under federal law. The Privacy Protection Act (which Timm cited in his tweet) passed into law in response to the landmark case Zurcher v. Stanford Daily, in which the Supreme Court ruled that it was constitutional for police to search a newspaper’s materials in a hunt for evidence of criminal wrongdoing. The law sought to correct this outrage, prohibiting searches and seizures of “any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Note the law’s agnosticism regarding whether the target may or may not qualify as a “journalist.” It applies to any person — whether O’Keefe or Bob Woodward — who’s out to disseminate information. Which is to say, it protects acts of journalism, even when they’re executed by people whose journalistic credentials may be iffy.

Another set of protections springs from the Justice Department’s guidelines regarding the issuance of subpoenas to the news media. Those provisions historically required top-level Justice Department approval — often from the attorney general personally — to subpoena members of the news media. The Biden administration strengthened those protections even further in July, essentially announcing that federal prosecutors will no longer pursue “compulsory legal process” — subpoenas — “for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities.” The new policy includes a narrow exception for instances when members of the media themselves are “under investigation for a violation of criminal law.”

In a letter to the Justice Department, Project Veritas’s attorneys argued that the seizure of O’Keefe’s phone violated those protections. Not so, responded Justice: “[T]he Government hereby confirms that it has complied with all applicable regulations and policies regarding potential members of the news media in the course of this investigation, including with respect to the search warrant at issue.” In a Monday letter to the Justice Department attorney general, Sen. Tom Cotton (R-Ark.) requested, among many other things, a “detailed description” of steps taken to comply with the applicable regulations.

Torres on Thursday issued an order that the Justice Department confirm that it has paused its extraction of data from O’Keefe’s phones, as Dhillon tweeted:

As this blog has noted on many occasions, the Supreme Court has ruled that publishing information that had been obtained illegally is protected by the First Amendment, on the condition that the news outlet didn’t participate in unlawful activities and the material was newsworthy. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” wrote Justice John Paul Stevens in Bartnicki v. Vopper. The Committee to Protect Journalists on Monday issued a statement citing “overreach” by law enforcement, and the Reporters Committee for Freedom of the Press requested that the court to unseal documents filed in connection to the O’Keefe search warrant.

“I’ve never said anything positive about Project Veritas in my entire life,” says Timm. “That shouldn’t matter here.” The key thing, he says, is whether the Justice Department has probable-cause evidence that Project Veritas was involved in criminality. If they do, says Timm, “I don’t think journalists should have big concerns.” The point being: The Justice Department had better have some goods.