Left: Sept. 22, 2022: James O’Keefe, founder of Project Veritas, announces plans to appeal the verdict against his organization for violating wiretapping laws and misrepresentation (image via YouTube screengrab). Right: Ashley Biden and Joe Biden appear at a Feb. 7, 2017 event in New York City. (Photo by Jamie McCarthy/Getty Images for GILT.)
A right-wing group specializing in hidden-camera investigations will not be able to use the First Amendment to stop the federal government from accessing documents and communications related to the group’s apparent acquisition of a stolen diary belonging to President Joe Biden’s daughter.
As Law&Crime previously reported, the FBI executed a search warrant in 2021 at the property of Project Veritas founder James O’Keefe, as well as from Project Veritas staffers Spencer Meads and Eric Cochran. The search warrants were granted in connection with the theft and sale of the personal journal belonging to Ashley Biden, the president’s daughter. Two people, Aimee Harris and Robert Kurlander, pleaded guilty in August 2022 to conspiring to commit interstate transportation of stolen property, admitting that they stole personal property — including Ashley Biden’s diary — and sold it to Project Veritas for a total of $40,000.
A special master, retired federal judge Barbara Jones, was selected to conduct a review of the documents in connection with the government’s investigation and determine which ones weren’t protected by the First Amendment, the reporter’s privilege, or attorney-client privilege. Project Veritas, Meads, Cochran, and O’Keefe — who is no longer with the organization — have been fighting the release of items seized under the 2021 search warrants.
In March, Jones released her report, which found that the DOJ’s seizure of the documents didn’t violate those principles and determined that, for the most part, the federal government could legally access the documents.
On Dec. 21, U.S. District Judge Alisa Nadine Torres agreed with Jones and upheld the special master’s conclusions. Torres, a Barack Obama appointee, rejected O’Keefe’s arguments that the documents and communications were off-limits to government investigators because they were protected by the First Amendment and attorney-client privilege.
As Torres explained, the First Amendment gives rise to a reporter’s privilege to keep sources confidential in the name of newsgathering. Noting that courts have “long recognized the existence of a qualified privilege for journalistic information,” Torres noted that journalists are not “passive collectors of information” whose work can be used to advance government investigations. The reporter’s privilege, however, “is not absolute, and reporters may still have to turn over information” in certain cases.
Torres reasoned that any confidentiality claims that O’Keefe and his fellow petitioners may have had as to the identities of Harris and Kurlander — and internal documents related to them — evaporated with their guilty pleas.
“[A] source who initially sought confidentiality may disclose to the public her identity and the information that she secretly provided. In that unusual case, the reporter is no longer safeguarding secret information, and the source does not expect confidentiality — so there is ‘no issue of betrayal of a promised confidence,”” the ruling says (citations omitted). “Here, Petitioners promised to keep the identities of Harris and Kurlander confidential. But, Harris and Kurlander pleaded guilty, and revealed to the public that they were the ones who provided the Victim’s journal and additional items to Project Veritas. Petitioners, therefore, are not ‘protecting the identity of any source.’”
O’Keefe’s contention that the documents sought by the government aren’t relevant to the case also failed.
“The Responsive Documents ‘go[] to the heart of the [potential] prosecution,’ because they will help the Government and any grand jury to determine ‘whether crimes have been committed and who committed them,’” the ruling says (citations omitted). “The reporter’s privilege does not prevent the Government from investigating whether a journalist has committed a crime.”
Torres also found that the documents were not protected by attorney-client privilege because the “crime-fraud exception” to that privilege allows disclosure of communications “if they relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.”
“Nine documents involve communications between Meads and the [Project Veritas chief legal officer] about contractual agreements between Project Veritas, Kurlander, and Harris,” Torres writes. “There is probable cause to believe that these documents furthered the Conspiracy.”
Harris is scheduled to be sentenced on Jan. 30, 2024, while Kurlander’s sentencing is scheduled for April 12, 2024.
Jeffrey Lichtman, an attorney for O’Keefe, told Law&Crime that the matter may not be settled.
“At this point, we’re still determining whether an appeal at this stage of the proceedings is appropriate,” Lichtman said in an email.
The judge gave prosecutors until Thursday to file relevant documents on the docket. The government’s filter team has until Jan. 5, 2024, to turn over materials that are not protected by the attorney-client privilege to federal investigators.
Read Torres’ ruling here.
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