Attorney General Merrick Garland still refuses to retract the memo he sent last month instructing the Department of Justice to scrutinize parents protesting at local school board meetings. Now his department may have committed another civil-liberties abuse with its raid on Project Veritas leader James O’Keefe.
Project Veritas is a right-wing media organization known for going undercover inside progressive institutions and using its findings to embarrass them. Early morning a week ago Saturday, FBI agents raided Mr. O’Keefe’s New York apartment, handcuffed him in the hallway and seized two cell phones. He has not been charged with a crime.
The subject of the investigation is apparently a diary believed to belong to President Biden’s daughter, Ashley Biden. Project Veritas says it was given the diary by two individuals last year and chose not to publish it because its authenticity couldn’t be verified, then handed it over to law enforcement. The diary was later published by an obscure website.
It’s settled law that it’s not a crime for journalists to publish information that was obtained unlawfully. If it was a crime, most of America’s largest news organizations would be criminal enterprises. Project Veritas says the people who gave the group the diary said it was not stolen. How the diary was obtained, and how it came to be published by a different website, is still murky.
Yet the search warrant says Justice is investigating “possession of stolen goods” and related offenses, suggesting Project Veritas or its employees may be targets. Imagine if the Trump Administration raided New York Times editors’ homes after the publication of the President’s tax records—or even for an investigation into documents they did not ultimately publish.
Nothing that invasive ever happened. But partly in response to the furor over the Trump Administration’s supposed threat to press freedom, Mr. Garland published guidelines in July narrowing Justice’s ability to seize information from reporters. The policy said Justice “will no longer use compulsory legal process” against journalists “acting within the scope of newsgathering activities.”
There are exceptions for things like the threat of imminent terrorist acts, or where a reporter “has used criminal methods, such as breaking and entering” to obtain information. Mr. Garland’s deputy must also approve any searches.
The seizure of Mr. O’Keefe’s phones gives the FBI access to all of Project Veritas’ investigations, not just records related to the diary. When Mr. O’Keefe’s lawyer asked the government after the raid to pause its search for a day to address legal issues regarding “attorney client privileged information, material protected by the First Amendment, and confidential donor information,” the government refused.
Last Thursday federal Judge Analisa Torres ordered the government to pause. She’ll consider Mr. O’Keefe’s motion to have a court-appointed “special master” keep the FBI from snooping on protected records.
The government also confirmed in correspondence with Mr. O’Keefe’s attorney that it “complied with all applicable regulations and policies regarding potential members of the news media”—meaning Mr. Garland’s guidance—in executing the search warrant.
That suggests Mr. Garland’s policy supposedly expanding press protections does the opposite. Reporters who obtain potentially stolen documents related to a public figure may be subject to the same treatment as Mr. O’Keefe—homes raided and devices seized and searched with no special dispensation for journalistic activity.
Journalism isn’t a shield against lawbreaking, and if Mr. O’Keefe committed a crime in obtaining the diary, he is subject to prosecution. We don’t agree with or practice all of Mr. O’Keefe’s methods, but what he does is reporting that qualifies as journalism.
The circumstances of the FBI raid were punitive. Project Veritas was in the process of complying with a subpoena. On Monday the Reporters Committee for Freedom of the Press filed a motion for the court to unseal the documents that were the basis for the search warrant.
Those documents better contain very strong evidence of a crime committed by Project Veritas to justify this behavior by a Democratic Administration toward a journalist. If not, the seizure of Mr. O’Keefe’s records is another abuse of civil liberties by Mr. Garland’s department, and Congress ought to ask what the Attorney General knew about it.