The Washington PostDemocracy Dies in Darkness

Opinion Project Veritas says it stands for the First Amendment. Its recent court filings suggest otherwise.

The New York Times headquarters on Feb. 26. (Jeenah Moon/For The Washington Post)

Lawyers for Project Veritas, the video-sting operation founded by James O’Keefe, are busy these days. In a federal court, the group is fighting the Justice Department over its investigative methods connected to the reported theft of the diary of Ashley Biden, the president’s daughter. As part of that investigation, the FBI raided the homes of O’Keefe and two former Project Veritas employees — an action that Project Veritas claims was a “heavy-handed” use of federal authority. And in a New York state court, Project Veritas is pursuing a defamation suit against the New York Times stemming from the paper’s coverage of a Project Veritas investigation regarding alleged illegal voting practices in Minnesota.

Uniting the two matters is an irony: Project Veritas’s leaders fancy themselves First Amendment purists, yet the actions they’re now asking courts to authorize would leave that doctrine in tatters.

Some background: On Nov. 11, the Times reported that Project Veritas had commissioned legal memos demonstrating the degree to which the organization goes to ensure that its undercover operations comply with all applicable laws. “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,” reads the article. The Times “inadvertently published” some of the memos “due to a technical issue” but later took them down.

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The article came five days after the FBI raid of O’Keefe’s home. As part of that operation, the FBI seized two of O’Keefe’s cellphones, according to a Project Veritas filing. The Times had breaking stories on the O’Keefe raid as well as earlier raids at two locations of “people who had worked” with Project Veritas on the diary.

In a Monday filing in federal court, lawyers for Project Veritas expressed concern about the Times’s activities. The “attorney-client privileged memoranda” at the center of the Times story, the lawyers “believe,” were on at least one of the phones seized by the FBI in the O’Keefe raid. Project Veritas, therefore, asked the court to direct the federal government to “inform” it if any agency “leaked Project Veritas’s attorney-client privileged memoranda to the New York Times” and to identify “who at the government is responsible for the previous leaks about Project Veritas and the government’s diary investigation to the New York Times.”

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That’s quite a request: For years, media organizations have disdained government leak investigations, not only for their chilling impact on the exposure of official wrongdoing but also for their tendency to sweep up journalists’ records. In its ongoing battle with the Justice Department over the raids, Project Veritas claims to be confronted with just such overweening federal power, decrying “extraordinary actions taken by the government.” Project Veritas declined to publish Ashley Biden’s purported diary, and it later ended up with a website called National File, which did publish it before the 2020 election. The peculiar circumstances of the diary’s handling, wrote Project Veritas in a Nov. 10 filing, do not “warrant the exercise of federal criminal authority to investigate and punish journalists who merely obtained the diary and possessed it temporarily.”

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New York Times spokeswoman Danielle Rhoades Ha issued this statement on the timing of the raid and the publication of the story on Project Veritas’s legal memos: “We received the documents prior to the FBI executing its search warrants.”

The Erik Wemple Blog asked Paul Calli, a lawyer representing Project Veritas, to comment on its advocacy of federal muscle against the New York Times. He responded via email, “Project Veritas requested a leak investigation of the government because it leaked information shielded by the cone of grand jury secrecy, or otherwise unavailable to the public, to Project Veritas’s competitor and litigation adversary, the New York Times. The only overreach is the government’s desecration of the First Amendment and its leaks designed to build a fake narrative.”

As to the evidence that the government leaked information to the Times about the diary investigation, Calli wrote us, “My filed motion addresses the government’s leaks. The real questions are: why hasn’t the government executed search warrants on the journalists at the New York Times? And why the government’s disparate treatment between Project Veritas and its competitor, the New York Times?”

Perhaps the answer is that the Times worked other sources for this information? In at least two articles over the past year, the Times relied on former employees of Project Veritas to substantiate its investigative reporting — and it also scooped up internal documents from the group for two articles. What’s more: The controversy over the Ashley Biden diary is driven by a Project Veritas “whistleblower” who tipped off National File to the story, according to that website’s editor in chief. Perhaps Project Veritas should turn its zeal for leak investigations on itself.

Calli had this to say about the Times’s claim that it received the memos prior to the FBI raids: “Aside from whether one can believe the New York Times’ claims, why is the paper of record so readily divulging potentially identifying information about its sources?” It’s unclear how attaching a time frame to its receipt of the documents constitutes “potentially identifying information.”

In its Monday filing, Project Veritas says its concerns about the alleged leaks is “heightened” because of the separate, ongoing defamation case in a New York state court. In a Wednesday motion in that case, lawyers for Project Veritas argued that the Times’s publication of the internal legal memos circumvented discovery channels and violated New York state law. (The motion noted that memos published by the Times were written by counsel of record in that same case.) Accordingly, they requested that the court direct the Times to remove from its website all “attorney-client privileged” material and return copies of such material to Project Veritas, as well as to “cease any further efforts to improperly obtain Project Veritas’ privileged materials” while the matter is sorted out.

On Thursday, New York state Supreme Court Justice Charles Wood, the trial judge overseeing the case, issued an order directing the Times to explain why it should be spared those measures. Until the situation is resolved, Wood ordered that the Times “immediately sequester, protect, and refrain from further disseminating or publishing any of Plaintiff Project Veritas’ privileged materials in the possession of The New York Times, or its counsel, and that The New York Times and its counsel shall cease further efforts to solicit or acquire Plaintiff Project Veritas’ attorney-client privileged materials.”

That’s a plain-and-simple example of prior restraint — and if it wasn’t okay in the case of the Pentagon Papers, it surely isn’t okay in the case of the Project Veritas Papers. Elizabeth Locke, counsel for Project Veritas, disputed that framing in a statement: “A prior restraint is just that — a restraint before publication. Here, The Times already published Veritas’ attorney-client privileged communications, and the interim order and more permanent relief sought are narrowly tailored to that misconduct. Moreover, even if this were a prior restraint (it is not), there are certain circumstances where the law permits a court to enjoin the publication of materials before it happens — including, for example, by a protective order in litigation between litigants to prevent the use and dissemination of attorney-client protected materials. And this is no greater restraint on speech than the myriad protective orders the Times has been subject to in other litigation proceedings.”

Dean Baquet, executive editor for the New York Times, issued this statement: “This ruling is unconstitutional and sets a dangerous precedent. When a court silences journalism, it fails its citizens and undermines their right to know. The Supreme Court made that clear in the Pentagon Papers case, a landmark ruling against prior restraint blocking the publication of newsworthy journalism. That principle clearly applies here. We are seeking an immediate review of this decision.”