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In Their Bid for Special Master, Project Veritas Provided Evidence of Possible Extortion

The warrants targeting James O’Keefe and two other Project Veritas figures list “Conspiracy to transport stolen property across state lines and conspiracy to possess stolen goods” and “Interstate transportation of stolen property” as the primary crimes under investigation.

That raised real concerns for me about the propriety of this search, because Bartnicki says that it is not illegal for journalists (or anyone else, including rat-fuckers like PV) to receive stolen information if they had nothing to do with the theft. This seemed like it might be a backdoor way to go after PV’s “journalism.”

A NYT story that fills in many of the details about the investigation into PV explains why such charges might not be unreasonable in this case: as PV had explained in multiple filings, PV appears to have had the diary transported from New York back to Florida to “return it” to law enforcement. It’s how (and when) they did so that is of interest. They did so only after being told they should treat the diary as stolen, and after Joe Biden had been declared the winner of the election last year.

Mr. O’Keefe’s lawyers said in a court filing last month that Project Veritas arranged for Ms. Biden’s items to be delivered in early November to the police in Florida, not far from the house where she had left them. As the investigation came to light last month, Mr. O’Keefe said in a statement that “Project Veritas gave the diary to law enforcement to ensure it could be returned to its rightful owner.”

But a Delray Beach Police Department report and an officer’s body camera video footage tell a somewhat different story. On the morning of Sunday, Nov. 8 — 24 hours after Mr. Biden had been declared the winner of the election — a lawyer named Adam Leo Bantner II arrived at the police station with a blue duffel bag and another bag, according to the police report and the footage. Mr. Bantner declined to reveal the identity of his client to the police.

Project Veritas has said in court filings that it was assured by the people who sold Ms. Biden’s items to the group that they were abandoned rather than stolen. But the police report said that Mr. Bantner’s client had told him that the property was “possibly stolen” and “he got it from an unknown person at a hotel.”

The video footage, which appears to be a partial account of the encounter, records Mr. Bantner describing the bags as “crap.” The officer can be heard telling Mr. Bantner that he is going to throw the bags in the garbage because the officer did not have any “information” or “proof of evidence”

“Like I said, I’m fine with it,” Mr. Bantner replied.

But the police did examine the contents of the bag and quickly determined that they belonged to Ms. Biden. The report said the police contacted both the Secret Service and the F.B.I., which later collected the items.

This lawyer, who is not listed among the close to forty lawyers with whom PV is claiming privilege, told Del Ray cops a story — that his client obtained the diary from a hotel — that doesn’t match any of the details PV is now using for their cover story. So if he weren’t already in trouble for telling cops a false story unprotected by privilege, PV may have created some problems for him.

The FBI included several kinds of evidence pertaining to location in their warrants (which, among other things, will help them determine who traveled with the diary back and forth from Florida).

Evidence of the location of Ashley Biden’s property and the location of the user of the Subject Accounts at times relevant to the Subject Offenses, such as communications that reference particular geographic locations or refer to the property being located in a particular place.

[snip]

Evidence of the identity, locations, knowledge, and participation in the Subject Offenses of potential co-conspirators, such as communications with other individuals—including, but not limited to, Jennifer Kiyak, Tyler Moore, Elaine Ber, Anthony Wray, Jackson Voynick, Leon Sculti, Robert Kurlander, Aimee Harris, Stephanie Walczak, and Elizabeth Fago—about obtaining, transporting, transferring, disseminating, or otherwise disposing of Ashley Biden’s stolen property, including but not limited to communications reflecting the knowledge of coconspirators that the property obtained from Ashley Biden had been stolen, and communications that contain personally identifiable information of co-conspirators and references to coconspirators’ places of residence or locations at particular points in time.

[snip]

Evidence reflecting the location of other evidence with respect to the Subject Offenses, such as communications reflecting registration of online accounts potentially containing relevant evidence of the scheme. [my emphasis; redaction fail PV’s]

Bartnicki protects journalists from possessing stolen property if they didn’t have a role in stealing it. But it doesn’t protect journalists from transferring stolen property that they choose not to publish back across state lines in a ploy to ensure it no longer remains in their possession in case of investigation.

The crime under investigation, then, may not be transferring the diary from Florida to New York, but transferring it back after Biden won, something that PV seems to be spinning as a do-gooder effort to reunite Ms. Biden with her property.

Investigating this shady attempt to unload the diary may be a way to obtain evidence of a more typical crime that PV (as opposed to their co-conspirators) may have committed: extortion, which is not among the listed crimes but which would show up in plain view in a return of the materials being sought. The FBI sought information on communications to Ms. Biden and her family.

Evidence of communications regarding or in furtherance of the Subject Offenses, such as communications with or relating to Ashley Biden (and representatives thereof) and/or Ashley Biden’s family, friends, or associates with respect to her stolen property.

[snip]

Evidence of steps taken in preparation for or in furtherance of the Subject Offenses, such as surveillance of Ashley Biden or property associated with her, and drafts of communications to Ashley Biden, President Biden, and Ashley Biden’s associates regarding her stolen property and communications among co-conspirators discussing what to do with her property.

Such communications would be necessary, of course, to confirm that (and when) PV and its alleged co-conspirators affirmatively learned that Ms. Biden considered the diary stolen. But it will also return details of this type of communication, as reported by NYT:

On Oct. 16, 2020, Project Veritas wrote to Mr. Biden and his campaign that it had obtained a diary Ms. Biden had “abandoned” and wanted to question Mr. Biden on camera about its contents that referred specifically to him.

“Should we not hear from you by Tuesday, October 20, 2020, we will have no choice but to act unilaterally and reserve the right to disclose that you refused our offer to provide answers to the questions raised by your daughter,” Project Veritas’ chief legal officer, Jered T. Ede, wrote.

In response, Ms. Biden’s lawyers accused Project Veritas of threatening them as part of “extortionate effort to secure an interview” with Mr. Biden in the campaign’s closing days.

Ms. Biden’s lawyers refused to acknowledge whether the diary belonged to Ms. Biden but told Mr. Ede that Project Veritas should treat it as stolen property — the lawyers suggested that “serious crimes” might have been committed — and that any suggestion that the diary was abandoned was “ludicrous.”

As I previously noted, when O’Keefe made a flopsweat video to try to spin his actions, he offered up that PV had made no threats.

In his heavily-edited flopsweat video, O’Keefe states PV “never threatened or engaged in any illegal conduct.” It would be unusual for PV not to try to confront anyone with a valuable document; their schtick is misrepresenting the response of their targets. And in all of PV’s communications, they emphasize efforts to validate the diary, which might be a way to spin other kinds of communications. [my emphasis]

Calling up a Presidential candidate and demanding an interview on threat of publication of the diary sure seems like a threat.

Both Spencer Meads

One could argue that utilizing federal law enforcement resources to investigate whether the personal diary of a then-presidential candidate’s daughter was stolen – a task that almost certainly be given low priority treatment by a local police detective if the diary’s owner was an average American – should be beneath the Department of Justice’s purview.

And PV mock the idea that the FBI would investigate a mere stolen diary.

If a person not named Biden had misplaced her diary and overnight bag, would the FBI investigate at all, much less raid the home of one of America’s most influential journalists? The case of the abandoned diary (or the case of the abandoned overnight bag) is an investigation better suited for the Hardy Boys than the DOJ and FBI.

The notion might be funny, except that the actions of the United States Attorney’s Office for the Southern District of New York inflict serious violence not just on the credibility of that office, but on the First Amendment to the Constitution of the United States itself.

But if the diary were valuable enough to extort a Presidential candidate over, it would surely merit the attention of the FBI.

And this is where PV may have really fucked themselves. Purportedly as part of an effort to prove PV’s journalistic ethics (but possibly in an effort to coordinate stories with co-conspirators), PV attorney Paul Calli produced an email dated October 12, 2020, which he claims shows PV’s decision, already made, not to publish the diary.

Although there was compelling evidence of the diary’s authenticity, James O’Keefe and Project Veritas’s newsroom staff ultimately found that the evidence of authenticity did not rise to a level sufficient to satisfy their journalistic ethical standards for news publishing. This remains fully consistent with their internal belief that the diary was genuine – the sordid nature of the diary’s contents required that a high threshold be satisfied prior to running a story on it. As James O’Keefe summarized the editorial concerns in an October 12, 2020, email:

Team, I’ve thought carefully on whether to release this so-called ‘Sting Ray’ story which involve entries in a personal diary to a very public figure.

My thinking and analysis in short is this:

To release means the action is less wrong than the necessary wrongs that would follow if the information were not utilized and published. But in this case even more harm would be done to the person in question and Project Veritas if we were to release this piece. We have no doubt the document is real, but [i]t is impossible to corroborate the allegation further. The subsequent reactions would be characterized as a cheap shot.

Whereas the great novelist Ernest Hemingway said[,] “[W]hat is moral is what you feel good after and what is immoral is what you feel bad after,” the great novelist Thomas B. Morgan paraphrased thus[:] “Morally defensible journalism is rarely what you feel good about afterward; it is only that which makes you feel better than you would otherwise.[”]

Using the Hemingway analysis, this very private entry related to a public figure’s family is not worth it, and it’s indefensible to publish what we currently have. I’m not worried about things we look into allegations but not publishing. Our actions so far are entirely defensible.

We are launching Colorado and CT tapes this week, which are unquestionably stronger and will make waves much bigger.

Ex. B. If James O’Keefe is a “political spy,” as his politically motivated detractors (such as those in corporate competitors like the New York Times) falsely allege, he could have simply published a salacious news story regarding Ashley Biden’s diary. But he did not. James O’Keefe’s and Project Veritas’s fidelity to their journalistic ethics include high editorial standards. To the extent they harbored any doubt that the diary was authored by Ashley Biden, the United States Attorney’s Office for the Southern District of New York and the FBI have removed all doubt. Nothing could be better confirmation of the diary’s authenticity and the claims therein than the government’s use of federal law enforcement to invade the homes of journalists who did not even run a story on the diary, but only considered doing so, and then turned all material provided to it by sources over to law enforcement. [my emphasis]

See my discussion (and, in comments, William Ockham’s) of signs that this email may have been crafted by lawyers as a CYA here.

Calli presents this email as reflecting a final decision from the outlet’s Editor-in-Chief not to publish this diary. Which means PV would have no journalistic purpose calling Biden after October 12. They weren’t going to publish the diary.

That would mean PV would have no journalistic purpose in calling Biden on October 16 to try to even ask for — much less extort — an interview.

There seems to be good reason why O’Keefe was flopsweating. Given how heavily edited that video is, I can’t believe they left in the mention of threats.

Because at least according to the NYT, PV made a threat to a Presidential candidate after already deciding that they weren’t going to publish. And only then did they allgedly transport the stolen property back across state lines.

Update: In an obnoxious pretense of responding to (Maddow’s coverage of) the NYT story, O’Keefe posted the second page of the letter to Biden. It reads, in part:

Should we not hear from you by Tuesday, October 20, 2020, we will have no choice but to act unilaterally and reserve the right to disclose that you refused our offer to provide answers to the questions raised by your daughter.

That doesn’t sound much like journalism to me.


These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.

The Publisher of the Steele Dossier, Ben Smith, Reports that the Hunter Biden Laptop Was Just a Political Dirty Trick

The recent Igor Danchenko indictment and overly credulous reporting on it have created a big new push for former BuzzFeed editor Ben Smith to reflect on his role in the dissemination of the Steele dossier.

In a Sunday column on mis- and disinformation, however, he makes no mention of it.

Instead, his column questions the inclusion of the Hunter Biden laptop story in a media executive seminar on, “help[ing] newsroom leaders fight misinformation and media manipulation.” Smith claims that treatment of the laptop story is, in fact, proof that the term “media manipulation” means  “any attempt to shape news coverage by people whose politics you dislike.”

A couple of them, though, told me they were puzzled by the reading package for the first session.

It consisted of a Harvard case study, which a participant shared with me, examining the coverage of Hunter Biden’s lost laptop in the final days of the 2020 campaign. The story had been pushed by aides and allies of then-President Donald J. Trump who tried to persuade journalists that the hard drive’s contents would reveal the corruption of the father.

The news media’s handling of that narrative provides “an instructive case study on the power of social media and news organizations to mitigate media manipulation campaigns,” according to the Shorenstein Center summary.

The Hunter Biden laptop saga sure is instructive about something. As you may recall, panicked Trump allies frantically dumped its contents onto the internet and into reporters’ inboxes, a trove that apparently included embarrassing images and emails purportedly from the candidate’s son showing that he had tried to trade on the family name. The big social media platforms, primed for a repeat of the WikiLeaks 2016 election shenanigans, reacted forcefully: Twitter blocked links to a New York Post story that tied Joe Biden to the emails without strong evidence (though Twitter quickly reversed that decision) and Facebook limited the spread of the Post story under its own “misinformation” policy.

But as it now appears, the story about the laptop was an old-fashioned, politically motivated dirty tricks campaign, and describing it with the word “misinformation” doesn’t add much to our understanding of what happened. While some of the emails purportedly on the laptop have since been called genuine by at least one recipient, the younger Mr. Biden has said he doesn’t know if the laptop in question was his.

And the “media manipulation campaign” was a threadbare, 11th-hour effort to produce a late-campaign scandal, an attempt at an October Surprise that has been part of nearly every presidential campaign I’ve covered.

The Wall Street Journal, as I reported at the time, looked hard at the story. Unable to prove that Joe Biden had tried, as vice president, to change U.S. policy to enrich a family member, The Journal refused to tell it the way the Trump aides wanted, leaving that spin to the right-wing tabloids. What remained was a murky situation that is hard to call “misinformation,” even if some journalists and academics like the clarity of that label. The Journal’s role was, in fact, a pretty standard journalistic exercise, a blend of fact-finding and the sort of news judgment that has fallen a bit out of favor as journalists have found themselves chasing social media.

While some academics use the term carefully, “misinformation” in the case of the lost laptop was more or less synonymous with “material passed along by Trump aides.” And in that context, the phrase “media manipulation” refers to any attempt to shape news coverage by people whose politics you dislike.

Unless Smith considers the two details he cites — some researchers have confirmed that some of the emails are authentic, yet Hunter Biden doesn’t claim to know whether the laptop in question was his — to be proof one way or another that this was a “politically motivated dirty tricks campaign,” he cites no evidence for his conclusion.

Smith doesn’t mention any of the reasons why there was and remains good reason to suspect the laptop — the provenance of which even Glenn Greenwald once proclaimed to be “bizarre at best” — was more than that. From the time President Trump first started extorting an investigation into the Bidens from Ukraine through at least January 2020, Russia’s military intelligence agency, GRU was found hacking Burisma, the company with which Hunter had a sketchy consulting relationship that was the initial hook for the laptop stories. Rudy Giuliani not only played a central role in the brokering of the laptop story, but reportedly had been sitting on a copy of the files for some time. Rudy, of course, had played a key role in Trump’s attempt to extort news of a Biden investigation and even during the impeachment inquiry, in spite of warnings from the intelligence community, traveled to Ukraine to meet with Andrii Derkach, who was subsequently sanctioned as a Russian agent. According to Ben Smith’s employer, Derkach’s efforts to deal “misleading information” to Rudy as part of a 2020 election operation are under investigation by EDNY; a parallel investigation into Rudy for serving as an unregistered agent of Ukrainian interests in events that were part of the impeachment inquiry remains ongoing at SDNY. An intelligence report related to the second story hung on the laptop, regarding Hunter’s ties to China, was disclosed to have been attributed to an intelligence analyst whose identity was entirely fabricated, down to his artificially generated face. And the IC’s report on efforts to interfere in the 2020 election includes one conclusion that sounds suspiciously similar to the efforts that led to the laptop story.

A key element of Moscow’s strategy this election cycle was its use of people linked to Russian intelligence to launder influence narratives–including misleading or unsubstantiated allegations against President Biden–through US media organizations, US officials, and prominent US individuals, some of whom were close to former President Trump and his administration.

If the Hunter Biden laptop story was just a political dirty trick, then it was one that exactly paralleled well-substantiated efforts involving Russian intelligence agents.

We now know, thanks to the investigation into Project Veritas, that the “sister” media package right wing propaganda outlets were pitching, the dissemination of a diary from Hunter’s half-sister in the very same weeks leading up to the election, similarly features a sketchy origin story that — SDNY has shown probable cause to believe — actually serves to hide the theft of the underlying diary. While SDNY has not yet charged anyone much less proven the case, it claims that the story about how reporters came to obtain such a juicy campaign prop was, itself, misinformation hiding theft. That’s another detail that Smith doesn’t mention in his piece.

Even if the similarities between Smith’s “old-fashioned, politically motivated dirty tricks campaign” and the acknowledged interference attempt by Russian agents are mere coinkydink, it nevertheless is the case that the Hunter Biden laptop package was an attempt at media manipulation, part of the reason it was presented to the seminar.

That’s because — again, as even Glenn Greenwald acknowledged — the presumptively authentic emails offered as the dangle in the laptop package provided, “no proof that Biden followed through on any of Hunter’s promises to Burisma.” By offering “authentic” emails and derogatory pictures just before the election, right wing operatives attempted to make a story that had long been reported (and key parts of it debunked by experts testifying under oath as part of the first impeachment) go viral just before the election not by offering any proof of the key allegations, but by waving something “authentic” around that could substitute for real proof.

It briefly worked, too, as high profile journalists disseminated the most inflammatory details in the story — effectively delivering the announcement of a criminal investigation pertaining to Ukraine that Trump demanded from Volodymyr Zelenskyy — and only after that started identifying really problematic parts of the story.

This entire episode was an effort to disseminate something “authentic” that nevertheless lacked proof of the underlying allegations as a way to lead people to believe those allegations. Classic media manipulation, and it nearly succeeded.

And Ben Smith, the man who published a dossier full of unproven allegations that — Republicans in Congress now believe — injected Russian disinformation into what otherwise might have been just an “old-fashioned, politically motivated dirty tricks campaign,” a dossier that (like Hunter Biden’s laptop) long stood as the proxy understanding for a criminal investigation into dramatically different facts, dismisses the possibility that it was disinformation blithely, presenting no real evidence for or against.

It is undoubtedly the case that there remain real questions about the Hunter Biden laptop package, questions that may get renewed attention given the new focus on the Ashley Biden diary package. Maybe one day, Ben Smith will be able to state, as fact, that it was just an, “old-fashioned, politically motivated dirty tricks campaign;” or maybe EDNY will uncover the real provenance of those “authentic” files all packaged up and handed to a guy who made no secret of his willingness to accept and disseminate Russian disinformation.

But at a time when he is actively refusing to reflect on his own actions in disseminating an “old-fashioned, politically motivated dirty tricks campaign” that seems to have been exploited as an easy vehicle for hostile disinformation, Ben Smith might want to be a little more cautious about assuming those lines are so easy to distinguish.

Sting Ray: Project Veritas’ Schrodinger’s Proxy

According to a court filing submitted on behalf of Spencer Meads, one of the former Project Veritas staffers whose phones were seized by the FBI on November 4, the circumstances that led to PV obtaining Ashley Biden’s diary started no earlier than August 2020.

Under any stretch of the imagination, the period relevant to the diary investigation does not pre-date August 2020.

[snip]

[A]ll events relating to the Government’s diary investigation began no earlier than August 2020. Accordingly, none of the work that Mr. Meads performed on behalf of Project Veritas before August 2020 – including newsgathering information and other information stored on his electronic devices before August 2020 – could have any possible relevance to or bearing whatsoever on the Government’s diary investigation.

The government appears to agree. The timeline for the warrant served on Meads (and Eric Cochran, the other former PV staffer searched that same day) starts on August 1, 2020.

August 2020 is when, according to the filing from Meads, PV first learned of the diary.

Project Veritas first became aware of the diary’s existence in August 2020 when Source 1 and Source 2 contacted Project Veritas through a proxy. PV Motion at p. 3. Just as Project Veritas and Mr. O’Keefe had never heard of Source 1 or Source 2 before this communication, Mr. Meads also had never heard of them. Nevertheless, Source 1 and Source 2 represented to Project Veritas that they were in possession of Ms. Biden’s diary, which they claimed Ms. Biden had left abandoned at a house located in Delray Beach, Florida. Id. Mr. Meads and Project Veritas had absolutely no involvement with how Source 1 and Source 2 acquired possession of the diary. [my emphasis]

The filing Meads cites to in that passage — PV’s original request for a Special Master — actually doesn’t provide that date. On the contrary, PV’s original filing is squishy about the date.

Earlier in 2020, two individuals – R.K. and A.H. – contacted Project Veritas through a proxy. Prior to this contact, neither James O’Keefe nor anyone at Project Veritas knew or had even heard of R.K. and A.H. [my emphasis]

That’s interesting, because a later PV filing insinuates that they first learned of the diary when a “tipster” called and left them a voicemail (a voicemail which would be responsive to the subpoena DOJ already served on PV) to let them know about it on September 3.

On or about September 3, 2020, a tipster called news outlet Project Veritas and left a voice mail. In the voice mail, the tipster indicated that a new occupant moved into a place where Ashley Biden had previously been staying and found Ms. Biden’s diary and other personal items: “[T]he diary is pretty crazy. I think it’s worth taking a look at.” Communications with the source (the new occupant) who found Ashley Biden’s abandoned diary and other abandoned items ensued. Project Veritas learned that Ashley Biden’s other abandoned personal effects in the sources’ possession included an overnight bag with the “B. Biden Foundation” logo and miscellaneous personal items. The source who found Ms. Biden’s abandoned diary and another source brought the diary to Project Veritas in New York. The sources arranged to meet the Project Veritas journalist in Florida soon thereafter to give the journalist additional abandoned items.

PV seems to be erasing up to a month of events that Meads seems to know about, including how PV first learned of the diary. It is also obfuscating the different roles here — “the tipster,” “the source,” “another source,” and “the Project Veritas journalist.”

The temporal discrepancy may have to do with that proxy referenced by Meads. Meads says the first PV learned about it was via a proxy. PV implies, in that recent filing, that they didn’t learn about the diary until receiving a voicemail in September. But as noted, the first PV filing also acknowledged the role of the proxy, even though it focused all its attention on the purported sources, R.K. and A.H., with no discussion of when or how the proxy got involved, or who that proxy was. Here’s a longer version of that passage:

When National File published 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. Id. No Project Veritas employee had authority to, or was directed to, provide the diary to National File. Nor to provide it to anyone else. Project Veritas had no involvement in National File’s publication of the diary and had no advance knowledge that National File intended to publish it.

Earlier in 2020, two individuals – R.K. and A.H. – contacted Project Veritas through a proxy. Prior to this contact, neither James O’Keefe nor anyone at Project Veritas knew or had even heard of R.K. and A.H. Those two individuals represented that they had material (including a diary) that Ashley Biden had abandoned at a house where she had been staying in Delray Beach, Florida. Project Veritas had no involvement with how those two individuals acquired the diary. All of Project Veritas’s knowledge about how R.K. and A.H. came to possess the diary came from R.K. and A.H. themselves.

R.K. and A.H. through their lawyers requested payment from Project Veritas for contributing the diary for potential publication. As described by these individuals, the diary appeared to be newsworthy. R.K. and A.H.’s lawyers negotiated an arm’s length agreement with two of Project Veritas’s in-house lawyers, wherein R.K. and A.H. reaffirmed that they had come to possess the diary lawfully. Pursuant to that agreement, R.K. and A.H delivered the diary and other materials reportedly abandoned by Ms. Biden to Project Veritas.

In the more recent filing, PV seems to address the role of the proxy almost 4,000 words after it suggests that the first it learned of the diary was that voice mail. Nine pages into the reply, PV’s lawyers reveal they have “interviewed” the “the individuals [plural] who steered the sources who found the abandoned diary” and complain that the government has not yet done so.

As our own investigation continues, we have learned that the government has deliberately avoided learning information that disproves its false theory that Project Veritas was somehow involved in a “theft.” The undersigned have interviewed the individuals who steered the sources who found the abandoned diary and other abandoned personal items, to Project Veritas (including the tipster who left the voice mail for Project Veritas on or about September 3, 2020). Astonishingly, the government has not interviewed these individuals, despite knowing their identities and listing them by name in the documents. From an investigative standpoint, the government’s choice not to interview them is inexplicable. The only possible explanation is that the government wishes to remain willfully blind or deliberately ignorant and avoid obtaining evidence inconsistent with its false theory that Project Veritas was involved in the theft of the diary and other materials. The sources told those individuals, just as they told Project Veritas, that the diary and other items were abandoned by Ashley Biden in a place where she had been staying while undergoing rehabilitation treatment.

The description that the documents “list [these people] by name” suggests they are the suspected co-conspirators whose names appear (but are redacted in publicly released versions of) the warrants.

Of course, a far more obvious explanation why the government hasn’t interviewed these people is that they’re suspects in a criminal investigation.

In any case, after having spoken with “the individuals who steered the sources who found the abandoned diary” and confirmed those people were still going to claim the diary was found, not stolen, PV obscured the role of the proxy.

There’s at least one more way that PV’s story is inconsistent. The original PV filing explains that it did not publish the diary because it could not sufficiently authenticate it. And only after making that decision, PV claims, did it first try to return the diary to Ashley Biden’s lawyer, and then transfer the diary back across state lines to give it to local law enforcement in FL.

Project Veritas conducted due diligence to determine if the diary was authentic and investigated the potential news story. After significant deliberation, Project Veritas decided not to publish the diary and not to run any news story about it. 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.

The later PV filing describes the question of authenticity as one limited to whether Ms. Biden’s attorney confirmed it was hers.

When Ashley Biden’s lawyer would not confirm her client’s ownership of the found items provided to Project Veritas, the news outlet arranged, on or about November 3, 2020, for the items to be delivered to state law enforcement in Florida, in the jurisdiction in which the source informed Project Veritas it originally found the abandoned items.

PV notes that it turned over the diary to Florida law enforcement on November 3, without noting that that was Election Day, after which point the diary would be of no further use in swaying the election.

Much later in the filing, PV references an email that James O’Keefe sent on October 12, 2020, explaining why he wasn’t going to publish it (which, given the timing, may have led “a whistleblower” to share it with National File). PV claims that it did so because the “sordid nature of the diary’s contents” required a higher threshold for authentication, and presents this decision as proof that PV is not a political spy firm (which, particularly given the headfake PV did on complying with a subpoena, is irrelevant to some of the First Amendment issues).

Although there was compelling evidence of the diary’s authenticity, James O’Keefe and Project Veritas’s newsroom staff ultimately found that the evidence of authenticity did not rise to a level sufficient to satisfy their journalistic ethical standards for news publishing. This remains fully consistent with their internal belief that the diary was genuine – the sordid nature of the diary’s contents required that a high threshold be satisfied prior to running a story on it. As James O’Keefe summarized the editorial concerns in an October 12, 2020, email:

[snip]

If James O’Keefe is a “political spy,” as his politically motivated detractors (such as those in corporate competitors like the New York Times) falsely allege, he could have simply published a salacious news story regarding Ashley Biden’s diary. But he did not. James O’Keefe’s and Project Veritas’s fidelity to their journalistic ethics include high editorial standards. To the extent they harbored any doubt that the diary was authored by Ashley Biden, the United States Attorney’s Office for the Southern District of New York and the FBI have removed all doubt. Nothing could be better confirmation of the diary’s authenticity and the claims therein than the government’s use of federal law enforcement to invade the homes of journalists who did not even run a story on the diary, but only considered doing so, and then turned all material provided to it by sources over to law enforcement.

That’s not what the email said. It said that PV was utterly convinced the diary was genuine, but not the allegations in it (a heavily-edited video of a sweaty O’Keefe released this November 5, after the first searches, also said they couldn’t confirm whether the “contents” of the diary “occurred”).

To release means the action is less wrong than the necessary wrongs that would follow if the information were not utilized and published. But in this case even more harm would be done to the person in question and Project Veritas if we were to release this piece. We have no doubt the document is real, but [i]t is impossible to corroborate the allegation further. The subsequent reactions would be characterized as a cheap shot. [italics original, bold mine]

More importantly, O’Keefe warned of harm to PV if they were to publish. PV doesn’t back off publication because of controversy, that’s what it sells. Which raises questions about what harm to PV that O’Keefe knew others would understand, without further explanation.

Before I get into that, few points about this email. First, note the way that O’Keefe doesn’t mention Ms. Biden by name (though makes it clear that’s what the reference was to). One possible explanation for that is that lawyers coached him to avoid using it. But by publishing the email, PV gave prosecutors reason to insist that mere keyword searches will not be an adequate way to respond to the subpoena, as a search on “Ashley Biden” would not return this email. Also note the typeface irregularities, which is possibly nothing more than bolding of the substantive part of it. That will lead prosecutors to want an electronic copy of this, to understand whether the alternate typeface was cut-and-pasted from somewhere. There are also pngs attached (which may just be the footers), which will be another thing prosecutors will rightly want to see an electronic copy of. O’Keefe has claimed to have privileged relationships with 45 lawyers, yet that mob has already twice succeeded in giving the government justification to ask for more expansive searches.

Other details about the diary may explain why O’Keefe was worried about harm to PV. PV never acknowledges that it turned the diary over to law enforcement only after National File claimed to know the precise location of the diary and know of an audio recording of Ashley Biden admitting the diary was hers.

National File also knows the reported precise location of the physical diary, and has been told by a whistleblower that there exists an audio recording of Ashley Biden admitting this is her diary.

[snip]

National File obtained this document from a whistleblower who was concerned the media organization that employs him would not publish this potential critical story in the final 10 days before the 2020 presidential election. National File’s whistleblower also has a recording of Ashley Biden admitting the diary is hers, and employed a handwriting expert who verified the pages were all written by Ashley. National File has in its posession [sic] a recording of this whistleblower detailing the work his media outlet did in preparation of releasing these documents. In the recording, the whistleblower explains that the media organization he works for chose not to release the documents after receiving pressure from a competing media organization.

PV wouldn’t need confirmation from Ms. Biden’s attorney if they had a recording, via whatever means, of her admitting that it was hers. Unless that recording was itself criminal or for some other reason impossible to acknowledge. Then they would need something more. They tried to get something more — confirmation from Ms. Biden’s attorney — and after the attorney refused, they turned the diary over to law enforcement.

And that’s interesting because the substance of communications with Ms. Biden, her attorney, and her father are among the things, the warrants describe, that SDNY is seeking. Among other things (including the communications with suspected co-conspirators like the proxy), they’re looking for:

  • Evidence of communications regarding or in furtherance of the Subject Offenses, such as communications with or relating to Ashley Biden (and representatives thereof) and/or Ashley Biden’s family, friends, or associates with respect to her stolen property.
  • Evidence regarding the value of Ashley Biden’s stolen property, such as communications about the resale or market value of any of the items stolen from her, or any plans ot sell or market the same.
  • Evidence of steps taken in preparation for or in furtherance of the Subject Offenses, such as surveillance of Ashley Biden or property associated with her, and drafts of communications to Ashley Biden, President Biden, and Ashley Biden’s associates regarding her stolen property and communications among co-conspirators discussing what to do with her property.

In his heavily-edited flopsweat video, O’Keefe states PV “never threatened or engaged in any illegal conduct.” It would be unusual for PV not to try to confront anyone with a valuable document; their schtick is misrepresenting the response of their targets. And in all of PV’s communications, they emphasize efforts to validate the diary, which might be a way to spin other kinds of communications.

It could still be the case that SDNY’s investigative steps are inappropriate, even if they have PV dead to rights participating in the theft of the diary.

But all these discrepancies sure make PV’s claims to be uninvolved less convincing.

Especially given the way lawyers for Meads — the former PV staffer who seems to know that that September 3, 2020 call is not the first that PV heard of the diary — torque a precedent from a different circuit pertaining to someone who didn’t learn about a source until after an illegal recording, to claim that even a journalist actively involved in a crime to obtain documents cannot be prosecuted.

While the Government attempts to draw a distinction between passive and active involvement in allegedly unlawful activities relating to obtaining Ms. Biden’s diary (see Opposition at pp. 3-4), this distinction makes no difference from a legal standpoint. Simply put, it makes no difference whatsoever whether the nature of Meads’ involvement was passive or active. In Jean v. Massachusetts State Police, 492 F. 3d 24 (1st Cir. 2007), the plaintiff was a political activist who obtained and posted on her website a copy of a video recording that was made in violation of the Massachusetts electronic interception statute. Id. at 25-26. When the police threatened to charge the plaintiff with a felony unless she abided by its cease and desist demand, the plaintiff obtained injunctive relief in federal district court. Id. at 26. The Government argued that the plaintiff “assisted, conspired, or served as an accessory to [the recorder’s] violation . . .” and, further, that the plaintiff’s “active collaboration with [the recorder] . . . made his unlawful dissemination possible in the first instance.”

[snip]

Additionally, the Government’s incorrect argument that “active involvement” by a journalist somehow eviscerates First Amendment protections for legitimate newsgathering materials does not held that the First Amendment protects news organizations from punishment where they publish information obtained lawfully from a third party. Bartnicki, 532 U.S. at 535. This holding does not support the Government’s position that First Amendment protection is unavailable to journalists who have involvement in unlawful conduct that is the subject of a Government investigation.

The facts of Jean v. MA may match the story that Meads and PV are telling about the diary, but they don’t match what the government clearly alleges behind some redactions: that PV had a role in the actual theft. And Meads seems to overstate the involvement of Jean in the illegal recording so as to make a claim that journalists cannot be investigated for a crime committed while reporting. It’s an interesting legal argument to feel you need to make, especially if you know what led up to a seemingly exculpatory voicemail that PV now purports to be the start of this story.

Update: One detail that should get more attention is that the diary in question dates to 2019 and ends with a period when Ms. Biden was in rehab or something. Its earliest entry is dated January 25, 2019 and the final entry was dated September 18, 2019. To suggest, as PV and others have, that it was found at the rehab facility is to claim that the diary went unnoticed for 11 months.

These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.