2023 Sucked, But At Least Project Veritas Finally Died

I come to bury Project Veritas, not to praise it.

James O’Keefe mugshot

James O’Keefe wouldn’t know journalism if it bit him on the ass, and a federal judge just confirmed it.

Last week Judge Analisa Torres, of the Southern District of New York, tossed O’Keefe’s First Amendment claims, permitting the government to see some 900 documents seized in a raid of his home and office. O’Keefe and his merry band of political propagandists and misinformation superspreaders won’t be able to shout “I’m a journalist!” as a means of fending off a criminal investigation.

You love to see it. Particularly when, as here, the investigation involves a plot to steal Ashley Biden’s rehab diary and turn it into the next “Hunter’s Laptop,” weaponizing her private struggles with addiction in an effort to harm her father.

James O’Keefe: Not a Journalist. Definitely an Asshole.

O’Keefe arose to prominence in 2009 with deceptively edited videos attacking ACORN, an anti-poverty non-profit. The rightwing goon and his sidekick Hannah Giles flogged heavily-edited sting videos of ACORN employees making obvious jokes like “Heidi Fleiss is my hero!” interspliced with snippets of themselves dressed as a pimp and a prostitute. The following year O’Keefe founded Project Veritas, a “non-profit” media company funded by rightwing donors with the goal of embarrassing Democratic politicians and the so-called liberal media.

In fact, they were never a legitimate media outlet, despite O’Keefe’s efforts to cast himself as a warrior for the First Amendment. Veritas’s “journalistic” endeavors included: attempting to lure a CNN reporter onto a boat decked out like a porn shop to secretly film her having sex; paying a woman to pretend to be a sex abuse victim of Republican senate candidate Roy Moore; and dressing up as a repairman in an attempt to bug the office of then-Senator Mary Landrieu.

That last earned O’Keefe a misdemeanor conviction, but it was clearly just a matter of time before he got himself in real legal trouble. And in November of 2021, that trouble arrived in the form of FBI officers executing warrants at the Veritas office in New York, as well as the homes of O’Keefe and several of his deputies.

The Biden Diary

When news of the raids broke, lots of legitimate journalists screamed bloody murder about the supposed assault on press freedoms. (Not me.) But almost immediately it became clear that Veritas had participated in a 2020 plot to steal a diary belonging to President Biden’s daughter Ashley which detailed her experiences in drug rehabilitation. And, if you’re wondering what kind of disgusting ghouls would steal a woman’s private rehab diary, the answer is: not legitimate journalists.

In 2020, Ashley Biden was renting a room in a friend’s house in Delray Beach, Florida. That June, she decided to move to Philadelphia to help with her father’s presidential campaign. But, intending to return to Florida, she left a duffel bag of personal items behind in the house. Her friend subsequently rented the room out to a woman named Aimee Harris, who found the bag and enlisted her friend Robert Kurlander in an attempt to monetize the items, particularly the diary.

After being rebuffed by the Trump campaign, they approached Veritas, which first instructed them to go back and get more of Ashley Biden’s personal belongings and then paid Harris and Kurland $20,000 each to bring the diary to New York.

As the New York Times reported, O’Keefe eventually decided not to publish it. But he still attempted to leverage it into a sit-down interview with the candidate.

“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 warned the Biden campaign on October 16.

But neither the father nor the daughter agreed to authenticate the journal. Both called Veritas’s conduct “extortionate” and objected to the “ludicrous” claim that the diary was “abandoned.” The document was eventually published by an even wing-nuttier outlet loosely associated with O’Keefe and Veritas. But then, on November 8, 2020, approximately five minutes after the news outlets all declared the election for Biden, a Delray Beach Police officer with a body-worn camera captured a lawyer named Adam Bantner turning over a duffel bag full of Ashley Biden's belongings, vaguely claiming that his client "got it from an unknown person at a hotel,” and that it was "possibly stolen."

Attorney Adam Bantner delivering Ashley Biden’s personal belongings to police. Credit: Delray Beach Police Department, via NYT.

The Special Master’s Review

After the raids in November of 2021, Veritas and O’Keefe petitioned Judge Torres to appoint a special master to wade through the seized devices and communications for privileged documents. Judge Torres tapped retired judge Barbara Jones to conduct the review. (It is always, always, always Barbara Jones.)

Obviously, the special master was rather busy, and so it took her until March of 2023 to issue her final report. This left plenty of time for Veritas and O’Keefe to howl indignantly about the grievous assault on their First Amendment rights as legitimate members of the press, backed up by an amicus brief from the ACLU. But, in the meantime, in August of 2022, Harris and Kurlander pleaded guilty to conspiracy to transport stolen property across state lines, and Kurlander agreed to cooperate with the government.

That put Veritas and O’Keefe in the awkward position of claiming to be protecting sources who did not wish to be protected, in effect exploiting the journalistic privilege to shield themselves from a criminal investigation.

Their lawyers pointed to a case called Bartnicki v. Vopper, 532 U.S. 514 (2001), in which the Supreme Court held that the First Amendment protects media outlets which disclose illegally obtained materials. Indeed, they went so far as to argue that this case makes it legal for media outlets to commit crimes while chasing a story.

Judge Jones rejected this argument out of hand, noting that the media outlets in Bartnicki weren’t accused of participating in crimes. And she overruled their claims of attorney-client privilege with respect to some of the contested documents under the crime-fraud privilege.

Which was bad for O’Keefe and Veritas.

And then last week Judge Torres adopted Judge Jones’s recommendations.

Which was worse.

Judge Torres’s Order

At the outset, Judge Torres agreed with Special Master Jones that there’s no magical “get out of crime free” card for journalists, and that the appropriate Supreme Court precedent is not Bartnicki, but a case called Branzburg v. Hayes, 408 U.S. 665 (1972), in which the Court held that the First Amendment does not excuse journalists from testifying before a grand jury in response to a subpoena. If reporters assert privilege over documents, then courts apply the law of the Circuit. Here, the Second Circuit set out a rubric in Gonzales v. Nat’l Broadcasting Co., Inc., 194 F.3d 29 (2d Cir. 1999), holding that journalistic privilege assertions may be overcome “upon a showing that the materials are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources.” Judge Torres found that this standard has clearly been met, since it’s alleged that O’Keefe and Veritas were participants in the crime under investigation and their communications about that crime cannot be obtained elsewhere, even with the assistance of Kurlander and Harris.

She also agreed with Judge Jones that the heightened standard for confidential materials doesn’t apply here, where the sources already outed themselves and turned over their communications to the government.

And, on page 22 of her order, Judge Torres concurred in the special master’s conclusion that the crime-fraud exception vitiates the attorney-client privilege. In two tantalizing blocks of redacted text, the court describes the documents and notes that communications “intended to ‘conceal’ criminal activity” cannot be shielded by privilege, even if you copy in your chief legal officer [CLO].

So much for Veritas’s claims that they were doing “journalism.” And so much for O’Keefe and Veritas’s hopes of keeping those documents out of the prosecutors’ hands, although Judge Torres has given them until January 9 to move for a stay pending appeal to the Second Circuit.

Implosion of Veritas

Even if we never get another James O’Keefe mugshot, the ruling marks the end of an era where he and Veritas were treated as legitimate journalists. There’s also the added schadenfreude that the organization is now moribund and at odds with its founder.

For the past two years, Veritas has been plagued with allegations of self-dealing and impropriety — from using donor money to advance O’Keefe’s musical aspirations to drug-fueled parties where guests pooped on the floor.

In February, O’Keefe was forced out by the board, which feared that his habit of treating donor money as his own personal slush fund jeopardized the organization’s tax-exempt status. In May, Veritas sued O’Keefe for breach of his employment contract. In September, Mediaite reported that Veritas had fired all its staffers and shut down operations. And then, two weeks ago, Giles, who was by O’Keefe’s side from the beginning and took over as CEO after his ouster, announced on Twitter that she was out for good.

“Though I had high hopes when I joined the organizations, I stepped into an unsalvageable mess — one wrought with strong evidence of past illegality and past financial improprieties,” she wrote, like a person who hadn’t had a front row seat for 15 years of this bullshit. “Once such evidence was discovered, I brought the information to the appropriate law enforcement agencies.”

No doubt O’Keefe will claim that this evidence was deceptively edited, because with these people there is simply no shame. And while 2023 kinda sucked, at least we can go into 2024 without having to worry about the next hit job from this pack of shitgibbons. So, cheers to that!

And also … another mugshot would be awesome.

In re: Search Warrant dated November 5, 2021 [Docket via Court Listener]