Barbara Jones Rules Project Veritas Was Not Engaged in Journalism When Brokering Ashley Biden’s Stolen Diary

After 16 months, Barbara Jones has submitted her Special Master report in the Project Veritas investigation to Judge Analisa Torres.

See this post for background.

She found 1,021 documents on James O’Keefe, Eric Cochran, and Spencer Meads’ phones that were responsive to the warrants in the case. Of those:

  • She reviewed 17 for crime-fraud exception and after asking for submissions on 14 of them (which I noted here), she found that 10 were excepted
  • She found 61 documents that Project Veritas successfully argued were not related to the search warrant

By my math, that leaves 953 files she recommends be turned over to investigators.

Much of the decision builds off the guilty pleas that Miles Kerlander and Aimee Harris entered into last August. Having already identified PV’s sources and established a crime had been committed, many of the questions regarding journalistic equities were far more limited.

Jones never mentioned that this case arose — and the first warrants against journalists obtained — under the Trump Administration. Though she does scoff at PV’s claims of malice.

Perhaps the most significant part of this ruling pertains to how she applies Bartnicki, which protects the publication of illegally obtained materials that the journalist had no role in obtaining. Not only does she except the case of PV, who are subjects of the investigation, but she seems to distinguish between investigative protection and criminal protection.

First, Petitioners’ heavy reliance on Bartnicki v. Vopper, 532 U.S. 514 (2001), is misplaced. Bartnicki addressed the narrow question of whether civil liability may be imposed on a publisher who obtained information in a lawful manner but from a source who obtained it unlawfully, a question that the Supreme Court answered in the negative. See id. at 528, 533–35. Here, the question is whether the Government may receive documents responsive to valid search warrants. Bartnicki does not speak to this issue, nor does it provide general principles applicable to my review.

Petitioners repeatedly argue that they are like the publisher in Bartnicki and that their actions fall “within Bartnicki’s protection.” James O’Keefe and Project Veritas’s Brief on First Amendment and Journalistic Privileges 19, Apr. 1, 2022 (“PV Br.”). Petitioners argue that Bartnicki renders the crimes under investigation here—including interstate transportation of stolen property and possession of stolen goods—“non-crimes.”4 Id. But Bartnicki addresses liability for publication of unlawfully obtained information (there, by a source) and does not “protect” unlawful acquisition of information. It does not suggest that people are free to commit unlawful acts simply because they are journalists. In fact, Bartnicki explicitly left open the question whether the government may punish not only a publisher’s “unlawful acquisition” of information but “the ensuing publication as well.” 532 U.S. at 528 (addressing only punishment of publication of materials obtained by a publisher lawfully but by a source unlawfully). Bartnicki certainly does not foreclose a government investigation of unlawful acts in acquiring material or excuse unlawful conduct by a journalist. See also Branzburg v. Hayes, 408 U.S. 665, 691 (1972) (“It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”).5 Nor does Bartnicki’s holding restrict the evidence that the Government may receive under the standards set forth above.

4 To the extent Petitioners assert “no credible claim that Project Veritas reporters stole the diary or anything else,” PV Br. 19, the crimes listed in the search warrant include conspiracy to transport stolen property across state lines, interstate transportation of stolen property, and possession of stolen goods.

5 Even if Bartnicki was applicable to this review, that decision was made based on a factual record that clearly established the publisher had nothing to do with the wrongdoing and received the materials in a lawful manner. Petitioners’ roles are currently under investigation.

The judge in this case will now decide whether to accept this report. But the case against James O’Keefe and others would still take some time for resolution.

In another case where a search warrant originally appeared abusive but turned out to be tied to something beyond journalism, NPR reports on how Rolling Stone protected James Meek in its story breaking the story of the search targeting him in child sexual abuse material case.

21 replies
  1. earlofhuntingdon says:

    Whoever is behind the twtr handle, Dexter Morgan, is vying for misogynist of the month. It starts a reply to Marcy’s analysis of the facts and law behind Trump’s legal jeopardy by writing: “Shut up lady, seriously….” You can read the rest on her twtr feed, but it gets worse.

    Its theme is that Marcy can’t be a serious analyst of TFG because she’s not a qualified lawyer, a description one could also throw at Benjamin Wittes, who’s on the Harvard Law adjunct faculty. Many lawyers are unqualified to be journalists, but reap fame and fortune as TV analysts. And there are many journalists who are superb at analyzing legal issues – and better than lawyers at explaining them to the reading public. Marcy is one of the best.

    • Gatorbaiter says:

      Some people just can’t handle the truth, especially when it comes from a brilliant woman.

    • Rugger_9 says:

      If Dr. Wheeler is wrong then show us the facts and an actual argument why she is wrong. Otherwise it’s standard bro BS. It appears one of the Faux News assistants was being picked to be the fall girl, and she sued in return, including to the surprise of no one paying attention allegations of a ranking system about which female politicians were worth ‘pursuing’ (ahem, this is a CLASS joint), discussed routinely.

      These are the same kind of incels that get hot and bothered over sideboobs and other middle school excitement. It’s who they are and what they do, part and parcel with the Dominionist view that women are chattel, nothing more.

  2. Rugger_9 says:

    As these cases wend their way I’m reminded of something Charlie Pierce said years ago: the wheels of justice may grind slowly but they usually grind exceedingly fine. While long overdue, accountability is coming for Project Veritas and O’Keefe in particular. Only the RWNJs would be willing to try to absolve what is really theft by calling it journalism. I’m glad Special Master Jones saw through it and crafted a coherent argument for Judge Torres.

    FWIW, Judge Torres is an Obama nominee and at least a third generation judge. She knows her law and I don’t see her ‘pulling a Cannon’ here to help out PV.

    • David F. Snyder says:

      ‘The mills of the gods grind slowly, but they grind small.’ — Empiricus (3rd century CE)

  3. Buzzkill Stickinthemud says:

    If I’m reading this correctly, PV tried to pull a fast one, perhaps hoping the Special Master wouldn’t do the deep dive into Bartnicki. If so, it just shows their shallow thinking that others (in the legal community) can be manipulated by superficial nonsense.

    Or maybe they’re just stalling for some reason?

    • bmaz says:

      Lol, you think people in the “legal community” are not familiar with Bartnicki v. Vopper? Really?

      • Peterr says:

        No, Buzzkill is saying *PV* thought that people in the legal community are not properly familiar with Bartnicki.

        • Buzzkill Stickinthemud says:

          Yes, what Peterr said is what I meant.

          It seems to me that right wing nut jobs think everyone else thinks like them and therefore they’re (whatever the opposite of right wing nut jobs is) corrupt.

          My original comment may have been better received in the original German.

        • Peterr says:

          The phrase “superficial nonsense” seem ripe for translation into a very idiomatic and poetically colorful German word.

        • bmaz says:

          Okay. But “My original comment may have been better received in the original German.”

          Please do not use that here. Maybe I misunderstood you originally, but this discussion is going down a rabbit hole fast.

  4. Ginevra diBenci says:

    The James Gordon Meek story should have been recognized by Schachtman at RS as the Kryptonite it was. He could have left it as Siegel reported it, at verified facts, but chose instead to add the suggestion of nasty government interference in press freedom. I can’t help wondering if he would have rolled over the work of a Tim Dickinson (or another male staff writer) the same way.

    The Meek revelations changed the course of my very long-term therapy. Horrific things that should never happen to children have been happening for a long time, but were never put into words–especially the clinical, inarguable words of an indictment–when those like me experienced them. I hope this legal process helps open the books, and memories, of others, and allows the kind of healing that prevents such atrocities from happening.

    • bmaz says:

      Schachtman is okay. And, if you really read the story, Tim is involved as well. People fuck up sometimes, it happens.

      • esqTJE@23 says:

        I think it’s really hard to estimate how gun-shy about accusatory stories an editor might be with the UVA date rape story in the rear view mirror. In my early career as a journalist, we had a pretty big whiff and we experienced “chilled-speech,” both editor imposed, and SELF-imposed, for a long time after. But I can’t think of anyone I know in the biz who’d try to protect someone in their ‘social circle’ or who ‘travels in the same social circles.’ To me, that hypothesis is LESS credible than the chilled speech one.

        I know the editor was not at RS at the time, but any editor would be weary of being the overseer when the outlet makes a 2nd big mistake in less than a decade. How would the hard journalism sector of RS ever come back from that?

        And i hate to go there, but reading the Grossberg Fox compaint and Meek indictment (and reading about the attack on Marcy’s reporting) in the same day made me ponder: would any of these things happened if the journalist or producer or national security sleuth was a MAN?

      • Ginevra diBenci says:

        bmaz, I did read the story. And every other story related to this awful situation. I still can’t understand Schachtman’s decision to change the original Meek report the way he did; at the time, I know I wasn’t the only one who interpreted it to mean the charges were indeed related to his work.

        Yes, Schachtman has presided over much excellent work, both at DB and RS, very much to his credit. That just makes this even harder to understand except as a highly misguided attempt to cover for a friend, an act of misdirection guaranteed to set off alarm bells for those of us habitually wary about government abuses.

        And I didn’t pull Dickinson’s name out of a hat; I referenced him because he was mentioned in the story.

    • emptywheel says:

      I did warn!

      Many journalists had a hard time with that one. Meek has long been a respected journalist. I think it was a tough story, because if you’re wrong you’re going to be in lawsuits forever. But that perhaps suggests it was a story to hold altogether until you can explain that DOJ had good reason for the search.

Comments are closed.