Project Veritas's founder, James O'Keefe, has denounced the lawsuit as an intimidation tactic to impede Project Veritas's “army of guerrilla journalists” and their pursuit of the truth.
The lawsuit, which comes at a time of strong political divisiveness, will not be without significant challenges, legal experts say.
For one, pretending to be someone else to expose something that might be of public interest is hardly new. And courts in the past have protected constitutional rights to gather and publish news, whether by the institutional press or the average citizen, said David Heller, deputy director of the Media Law Resource Center.
Secondly, although wiretapping laws make it illegal to secretly tape conversations, they also say that it's okay to do so as long as one party knows about the recording and had consented to it. The exception, known as the “one-party consent,” is the reason why, for example, President Trump wouldn't have broken any laws if he did tape conversations with former FBI director James B. Comey.
A judge or a jury will have to answer these questions: Do Project Veritas's undercover investigations serve the public interest? Or are they a smear campaign disguising as journalism?
“In the current environment of 'fake news' and hyper partisanship, it won't be surprising if judges struggle over what is or isn't for the good of the public,” Heller told The Washington Post.
It all started in June 2016, when a man named Daniel Sandini introduced himself to Democracy Partners's founder, Robert Creamer. Using a false name, Sandini connected Creamer to his niece who he claimed was interested in advocacy and political work, according to the complaint, which was filed last week. That niece, Allison Maas, used a false name and a fabricated resume to secure an internship at Democracy Partners.
Both Sandini and Maas are Project Veritas operatives, the lawsuit states.
During the course of her internship, which started in September, Maas wore a hidden camera and audio recording devices. She recorded conversations made with clients in person or via conference calls, the lawsuit states. She had access to confidential emails and documents and was present at confidential meetings.
Creamer had told her not to share information with anyone, the lawsuit states, although Maas never signed a nondisclosure agreement with Democracy Partners. Sandler said that even without a nondisclosure agreement, Maas owed it to Democracy Partners to not steal information.
“You essentially sign up for an internship and become part of an organization,” Sandler said. “You owe a basic duty of loyalty to that organization that you are not going to — that you haven't deceived them, defrauded them. That's what she breached here.”
Mason Kortz, an instructional fellow at Harvard University's Cyberlaw Clinic, said what will likely be a hurdle for Democracy Partners is the manner in which the conversations were recorded. Was Maas a bystander recording other people's conversations? Or was she a part of the conversations? If it's the latter, federal and Washington wiretapping laws' “one-party consent” could give Maas some reprieve, Kortz said.
But the laws also provide another exception that could help Democracy Partners, Kortz said. Secret recordings are illegal in Washington if they were done to purposely damage a person or an organization.
“They would have to provide proof of what (Maas's) purpose was, her state of mind,” Kortz said.
According to O'Keefe, his organization's purpose is investigative journalism that exposes “malfeasance and corruption” of certain organizations. Sandler calls it “political espionage.”
In the weeks leading up to the presidential election, Project Veritas released videos, some of which were from footage taken by Maas. The series, called “Rigging the Election,” purport to prove that Democracy Partners, including Creamer and a Democratic activist from Madison, Wis., had committed voter fraud and conspired to disrupt campaign rallies of Trump, who was then a Republican presidential candidate.
Creamer announced that he was “stepping back” from his work for the Clinton campaign shortly after the videos were published. Scott Foval, the activist who contracted with Democracy Partners, was laid off. Democracy Partners and a consulting firm owned by Creamer also lost clients and contracts.
The lawsuit alleged that the videos, some of which Trump mentioned at presidential debates and which have been viewed millions of times on YouTube, were selectively and heavily edited and contained false commentary by O'Keefe.
Yael Bromberg, a supervising attorney for the Institute for Public Representation at Georgetown Law, said the videos gained “widespread criticism across the political spectrum.”
“We're in an era of unprecedented hyper partisanship and fake news, and the integrity of the public domain is critical to the practice of democracy,” said Bromberg, who's also representing Democracy Partners and Creamer. “What's more is they degrade public discourse during a time of heightened importance, which is when the public is most in tuned into politics just before the election.”
In an earlier statement, Democracy Partners denounced both Project Veritas and the statements caught on camera.
“Our firm has recently been the victim of a well-funded, systematic spy operation that is the modern-day equivalent of the Watergate burglars,” the firm said. “The plot involved the use of trained operatives using false identifications, disguises and elaborate false covers to infiltrate our firm and others, to steal campaign plans and goad unsuspecting individuals into making careless statements on hidden cameras. One of those individuals was a temporary regional subcontractor who was goaded into statements that do not reflect our values.”
O'Keefe said that he and his group are on the right side of the law.
“This lawsuit further justifies the need to drain the swamp. … We will not be intimidated. We will not be silenced. We will find out who is funding this lawsuit. We will never stop exposing the truth. We will not back down,” said O'Keefe, whose organization received $10,000 from the Trump Foundation in 2015 before he announced his candidacy.
O'Keefe first gained notoriety in 2009, when Project Veritas's undercover sting led to the destruction of the Association of Community Organizations for Reform Now, or ACORN. Another sting in 2011 led to two resignations at NPR, although subsequent investigations found discrepancies between what NPR executives actually said in taped conversations and what was shown in the sting video.
In 2013, O'Keefe agreed to pay $100,000 to a former ACORN employee who said he was illegally recorded.
David Weigel contributed to this report.
CORRECTION: An earlier version of this story incorrectly characterized Shane Bauer's reporting when he worked as a prison guard for a Mother Jones expose. The article has been updated.