DOJ accused of massive overreach, assault on press freedom in Project Veritas probe
James O'Keefe, civil liberties advocates decry government's use of sweeping search warrants.
The Facts Inside Our Reporter’s Notebook
The FBI and the Justice Department have overreached their authority and violated the First Amendment by secretly surveilling a media organization critical of the Biden administration, according to a journalist who's been the target of a sweeping government probe.
In March, Project Veritas was notified by Microsoft, its electronic communications service provider, that for over a year the government had been secretly seizing and reviewing the media organization's emails and other electronic information through sweeping search warrants under non-disclosure orders, according to a motion filed by Paul Calli, the lawyer for Project Veritas founder James O'Keefe.
Microsoft was able to notify Project Veritas of this surveillance only because the Big Tech firm's attorneys resisted government efforts to renew non-disclosure orders and told federal prosecutors that Microsoft would pursue litigation to disclose these matters, the court filing shows.
The government attempted to keep the electronic surveillance orders under wraps even after its investigation became public knowledge and the U.S. District Court for the Southern District of New York appointed a special master to supervise federal prosecutors' access to Project Veritas' materials.
Through the Microsoft search warrants, which were unsealed in March, the government seized nearly 200,000 Project Veritas emails and other files, many of which were unrelated to the Justice Department's purported reason for initiating the warrants.
In September 2020, sources contacted Project Veritas saying they found a diary belonging to then-presidential candidate Joe Biden's 40-year-old daughter, Ashley Biden, that had been left behind along with other belongings when she moved out of a Delray Beach, Fla. house subsequently occupied by one of the sources.
Over the next month, Project Veritas worked to authenticate the diary, reaching out to Ashley Biden and the Biden campaign, but ultimately decided against publishing its contents. However, an unaffiliated news site, National File, separately published the full diary in late October 2020, days before Project Veritas arranged for the diary to be delivered to the Delray Beach police department.
About a year later, in October, the FBI seized the electronics of Project Veritas' sources and tried to interview them.
The following month, federal prosecutors obtained and executed warrants to raid the homes of three Project Veritas journalists, including O'Keefe, and seize their electronic devices. O'Keefe was handcuffed during the search of his home and required to stand in the public hallway of his apartment building dressed in his underwear, according to court documents.
Journalists are legally protected by the First Amendment for receiving materials from sources — even if the sources stole the materials before handing them over to the media.
However, the Justice Department has contended that Project Veritas was "actively involved" in stealing the diary and transporting it — a claim denied by the sources, who have consistently said it was abandoned at the Florida house, and O'Keefe's legal team.
"The government keeps using the word stolen," Calli told Just the News. "Don't buy the lie. Someone has to make the government explain why they used the most invasive means possible on an American journalist and citizen. And over what? An abandoned diary."
The trove of emails obtained by the government through the Microsoft warrants dates back to January 2020, some eight months before sources offered the diary to Project Veritas.
On March 30, Calli filed a motion for his client's property to be returned.
"What the government did here violated the Constitution, the First Amendment, the Justice Department's internal procedures, and the very pronouncements of freedom of the press that Attorney General Merrick Garland has made for the past year and President Biden made at the White House correspondents' dinner on Saturday night," said Calli. "It's time for them to give back all the property they took and destroy what they have so they can't access it."
Calli has accused the FBI and Justice Department of violating the First Amendment, Fourth Amendment, and the Privacy Protection Act.
The government has been silent about Calli's accusations, and U.S. District Judge Analisa Torres has given the government until Friday to respond to his latest motion.
Just the News reached out to the Justice Department for comment for this story. The department forwarded the request to the FBI, which declined to comment.
The U.S. Attorneys' Manual, which includes guidance for federal prosecutors, says the Justice Department should take a surgical approach when obtaining records from the news media, only seeking what it needs for the given case.
According to Calli, the department used a "sledgehammer," not a scalpel, and the results threaten freedom of the press.
"The problem is not just the sheer volume of emails or the extraordinary period of time in excess of the conduct at issue," he said. "The government now has all sorts of potential access to newsgathering efforts and stories, both historical and pending, that they have no right to have. They can read anything and everything Project Veritas was investigating. And they have access to Project Veritas' donor information, which is protected under the First Amendment.
"This has a chilling effect on existing sources and potential sources. Current whistleblowers within the government have expressed concern about whether the Justice Department and FBI are accessing their electronic information and looking at these communications. They are hesitant and have expressed concern that as a result of government overreach, the government will attack them for providing information that is newsworthy and critical."
Advocacy groups promoting press freedom have expressed similar concerns.
"We're troubled by the government's sweeping searches and seizures in this case," said Brian Hauss, a staff attorney with the American Civil Liberty Union's Speech, Privacy, and Technology Project. "To prevent law enforcement overreach from chilling fundamental First Amendment freedoms, government investigations into press activities must be precisely tailored to specific allegations of criminal conduct. Without knowing more, it appears that the government's searches in this case may not have been appropriately limited."
Hauss added that the government is setting a troubling precedent for press freedom with its probe into O'Keefe and Project Veritas.
"The freedom of the press protects anyone engaged in the dissemination of information to the general public," he said. "Whatever anyone might think about Project Veritas, they are engaged in press activities. The precedent set by the government's investigation here will affect press freedoms enjoyed by all manner of press institutions."
The government has been dishonest in its investigative efforts, according to O'Keefe and Calli, who say there's no crime to investigate and the government has been trying to keep as many warrants sealed as possible to avoid revealing they used misleading or false information to secure the warrants.
"The prosecutors should have the courage to stand by what they wrote in sworn affidavits to federal judges and unseal them," said Calli. "Instead, like cowards who operate in the dark, the prosecutors are clawing and fighting to keep secret the things they peddled to the federal judges in order to get their warrants signed."
In a statement, O'Keefe expressed similar sentiments and compared his situation to Politico reporters Josh Gerstein and Alexander Ward publishing a draft copy of a Supreme Court opinion overturning Roe v. Wade, the landmark 1973 decision that established a constitutional right to an abortion, on Monday night.
"Josh Gerstein at Politico received a stolen copy of a draft opinion overturning Roe v. Wade and published it," said O'Keefe. "And yet he sleeps well in his own bed tonight, with no fear of being rousted at 6 a.m. by short, loud, thuggish FBI agents as I was, and handcuffed. It is right that he not fear prosecution. It is wrong that we must. Welcome to America in 2022."
O'Keefe and Calli suggested the government is targeting Project Veritas based on ideology, not substance. O'Keefe has been an outspoken conservative, and Project Veritas has been openly critical of the Biden administration.