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

March 21, 2023/21 Comments/in 2020 Presidential Election /by emptywheel

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.

Special Master in Project Veritas Investigation Reviewed Crime-Fraud Submissions in December

January 19, 2023/14 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

Back in December, Paul Calli and his firm withdrew from the Project Veritas Special Master docket, and was replaced by Edward Greim, a partner in Matt “Big Dick Toilet Salesman” Whitaker’s firm. He also represents a number of Trumpsters before the January 6 Committee.

That’s interesting timing because, according to the invoice that Special Master Barbara Jones just submitted, she spent two hours that week reviewing Crime-Fraud submissions in the case.

DOJ Rethinks — but in a Few Areas, Expands — Access to Media Content

October 27, 2022/6 Comments/in emptywheel, FISA, Leak Investigations, WikiLeaks /by emptywheel

In a story on the new media guidelines DOJ rolled out yesterday, Charlie Savage reveals what representatives of the press think they got in the new guidelines, in addition to a formal codification of broader restrictions on the use of legal process to find real journalists’ sources:

Those conversations led to several adjustments about potentially critical issues, like how “news gathering” is defined. According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.

The language in question appears to cover things like encrypted dropboxes, something that journalists liked to compare (inaptly) to the charge against Julian Assange of attempting to hack a password for Chelsea Manning. Thus far, multiple criminal prosecutions show that dropboxes have not thwarted DOJ from prosecuting those who submitted documents into them.

Journalism includes reporting on classified information

A more important change is that the guidelines explicitly include reporting on classified information in its definition of newsgathering.

Newsgathering includes the mere receipt, possession, or publication by a member of the news media of government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.

Savage describes that “is also said to have removed espionage from a list of criminal activities that are excluded from protected news gathering.” I’m not sure that’s right: 18 USC 793 and 798 were (along with Child Sexual Abuse Materials) included in the exceptions to 42 USC 2000aa, which I think is unchanged by this regulation.

What has been removed from the prior version (in addition to the inclusion of classified information in the definition of newsgathering) is an exception permitting the use of legal process in investigations of classified leaks. This language has been removed.

In investigations or prosecutions of unauthorized disclosures of national defense information or of classified information, where the Director of National Intelligence, after consultation with the relevant Department or agency head(s), certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified and reaffirms the intelligence community’s continued support for the investigation or prosecution, the Attorney General may authorize members of the Department, in such investigations, to issue subpoenas to members of the news media.

In other words, it wasn’t that there was an exception for the Espionage Act. Rather, there was language permitting searches in leak investigations that might be (and frequently have been in recent years) charged under the Espionage Act. That exception has been removed, and reporting on classified information has been explicitly included in the definition of newsgathering.

As we’ll see below, the regulation still authorizes searches in cases of suspected agents of a foreign power.

Expanded protection and a prohibition with exceptions instead of permission for exceptions

As Savage notes, however, the topline change is both a restructuring in the ways that a journalist’s sources might be accessed and the types of legal process covered. Whereas previously, the language on accessing source information included a presumption of access with a bunch of limits on use, as laid out in the prior regulation …

The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. In particular, subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 may be used, after authorization by the Attorney General, or by another senior official in accordance with the exceptions set forth in paragraph (c)(3) of this section, only to obtain information from, or records of, members of the news media when the information sought is essential to a successful investigation, prosecution, or litigation; after all reasonable alternative attempts have been made to obtain the information from alternative sources; and after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. [my emphasis]

The new regulation outright prohibits compulsory legal process except in certain exceptions.

(c) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope ofnewsgathering. Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering is prohibited except under the circumstances set forth in paragraphs (c)(l) through (3).

In other words, these regulations importantly flip the presumption from one that permits the access of journalist records in certain situations to one that prohibits it except according to an enumerated exception.

And this revised regulation has broader language prohibiting the use of legal process. It now includes interception orders (like that used against NBC journalists who were sourced by Henry Kyle Frese), MLAT orders (like the Mexican one that targeted Zach Whittaker in 2020), and orders served on obscure third party providers of enterprise email hosting (like orders used against the WaPo and NYT in recent years).

“Compulsory legal process” consists of subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, interception orders issued pursuant to 18 U.S.C. 2518, civil investigative demands, and mutual legal assistance treaty requests-regardless of whether issued to members of the news media directly, to their publishers or employers, or to others, including third-party service providers of any of the forgoing, for the purpose of obtaining information from or records of members of the news media, and regardless of whether the compulsory legal process seeks testimony, physical or electronic documents, telephone toll or other communications records, metadata, or digital content.

In other words, the revision closes loopholes used under the Trump Administration.

What journalism isn’t

More generally, DOJ has reconceptualized the regulation though the use of exceptions.

Some of these are exceptions that permit the compelled process of a journalist, the most interesting new one of which entails evidentiary authentication with DAAG authorization.

(1) To authenticate for evidentiary purposes information or records that have already been published, in which case the authorization of a Deputy Assistant Attorney General for the Criminal Division is required;

This may be a response to the need to get journalists to validate videos they took on January 6.

DOJ has slightly reworked an existing section that at least used to be tailored to the definition covered by FISA (and FISA surveillance of journalists is in no way excluded from these regulations). It still includes the same language excepting an agent of a foreign power or someone who aids or abets one.

A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

In at least one of the reworked categories, the regulations represent an (entirely reasonable) expansion. The regulation includes this definition of terrorist activity — adding 18 USC 2339B, C, and D — which not only aren’t tied to State’s Foreign Terrorist Organization designations, but also includes (with C) funding for what could be domestic terrorism.

Committing or attempting to commit the crimes of providing material support or resources to terrorists or designated foreign terrorist organizations, providing or collecting funds to finance acts of terrorism, or receiving military-type training from a foreign terrorist organization, as those offenses are defined in 18 U.S.C. 2339A, 2339B, 2339C, and 2339D; or

Seamus Hughes pointed me to this case in which three white supremacists were prosecuted under 18 USC 2339A as an example of how this might apply to domestic terrorists. The new regulations add a review by the National Security Division head on these categories, but since John Demers approved the data collection on real journalists under the Trump Administration, that’s unlikely to be a very useful protection.

Another new exception — this time not associated with newsgathering — is for an investigation targeting a journalist’s non-journalist housemate or similar who is the subject of an investigation.

To obtain information or records of a non-member of the news media, when the nonmember is the subject or target of an investigation and the information or records are in a physical space, device, or account shared with a member of the news media;

But the biggest change is that, in addition to that tweaked list of national security exceptions, DOJ added a bunch of more common crimes that journalism doesn’t include:

(B) Except as provided in paragraph (b)(2)(ii)(A) of this section, newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.

The distinctions are not entirely clearcut though. Of most concern, what distinguishes a journalist reporting on tech vulnerabilities and a hacker is that “requisite criminal intent,” and one often determines that by accessing content.

Incorporation of cases against recent not-journalism cases

Importantly, however, these crimes include a number of the cases that got journalists all hot and bothered but which, under the new rules, are very clearcut (Savage’s professed uncertainty about Project Veritas notwithstanding).

DOJ’s approach to Julian Assange didn’t begin change until he helped Edward Snowden flee to Russia and Assange wasn’t charged — initially, with attempting to help Chelsea Manning crack a password, itself included in one of the distinguishing crimes — until after he had aided and abetted Russia in a hack-and-leak campaign, one of the national security exceptions. The Espionage charges against Assange were filed after Russia attempted to exfiltrate Assange at the end of 2017. Any superseding indictment of Assange in the future would likely include an extortion claim and an aid-and-abet claim of Josh Schulte’s hacking of the CIA, for which Assange clearly expressed the criminal intent.

With regards to Project Veritas, the very first subpoena targeting their office manager (one obtained while Bill Barr was still Attorney General) listed 18 USC 873, blackmail — a kind of extortion — among the crimes under investigation, and their own defenses raised the possibility of extortion. Plus, Robert Kurlander’s statement of offense described trying to raise the price Project Veritas would pay for Ashley Biden’s diary because it was “literally a stolen diary.” So these new guidelines, applied retroactively, make the Project Veritas search an obvious exception.

The distinction between certain crimes and journalism would encompass three other, still undisclosed investigations into journalists last year described in DOJ’s report on legal process. The first was into insider trading:

In connection with an investigation of securities fraud and wire fraud relating to insider trading activities, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the person, personal effects, and cellular telephones of a member of the news media who was the subject of the insider trading investigation. Investigators had established probable cause that the member of the news media had participated in the insider trading activities with three coconspirators and was in communication with the primary target of the investigation, a former U.S. Congressperson; and that the information seized pursuant to the search warrant would lead to further evidence. Investigators had pursued multiple avenues to obtain the evidence, without success, and had exhausted all investigative leads. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the member of the news media’s newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the Privacy Protection Act (PPA), see 28 C.F.R. § 50.10(d)(4).

The second was into fraud and money laundering.

In connection with a fraud and money laundering investigation involving employees of a news media entity, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to search stored electronic content of email accounts maintained by a member of the news media and its affiliate entity; and to issue a subpoena to a thirdparty service provider for information relating to accounts maintained by a member of the news media. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the entities’ and employees’ newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

A third investigation last year into stalking that included the use of spyware and hacking.

In connection with an investigation of a member of the news media for stalking offenses, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the email account of the member of the news media. Investigators had established probable cause that the member of the news media had engaged in harassment and stalking of multiple people, including through the installation and use of spyware and the hacking of social media accounts, as well as employing several means to damage the reputations of the parties the member of the news media was harassing and stalking. The U.S. Attorney’s Office established evidence that the information seized pursuant to the search warrant would lead to evidence regarding the member of the news media’s criminal conduct, which was wholly outside the scope of his newsgathering activities. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant application pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

In other words, DOJ has used the lessons from the Trump DOJ’s hunt for journalistic sources, Julian Assange, Project Veritas, and three other undisclosed investigations (and who knows? Perhaps also to media outlets run by Neo-Nazis to help fundraise) to change how they conceive of journalism. All of those are reasonable exceptions from journalism.

There are a bunch of potential loopholes. If DOJ wants a journalist’s content, there are a great many ways they can still get it and because those exceptions would permit sustained secrecy about the searches might never be disclosed.

But these regulations, at a minimum, have established that reporting on classified information is part of journalism and have eliminated a lot of the loopholes to surveillance used to target journalists during the Trump Administration.

Aileen Cannon Calls an Investigation into “What’s Literally a Stolen Diary” … “Politicized”

September 5, 2022/81 Comments/in 2020 Election, Leak Investigations /by emptywheel

This is a minor point, but one that deserves more attention. Plus, I plan to use it in future posts about the unlawful assault on property rights that Judge Aileen Cannon has mounted in her opinion appointing a Special Master to stall the investigation into Donald Trump’s suspected theft of classified documents.

In a footnote of her opinion, Judge Cannon pointed to the Special Master appointed in the Project Veritas case as a precedent of a judge (Analisa Torres, in this case), appointing a Special Master “in politicized circumstances.”

Moreover, at least one other court has authorized additional independent review for attorney-client privilege outside of the law firm context, in politicized circumstances. See In re Search Warrant dated November 5, 2021, No. 21-Misc-813, 2021 WL 5845146, at *1 (S.D.N.Y. Dec. 8, 2021) (appointing a special master to conduct review of materials seized from the homes of employees of Project Veritas for potentially attorney-client privileged materials).

To be fair, I kept waiting for Trump’s lawyers to raise this precedent (though not for the principle Cannon did).

But they didn’t.

Not in the original complaint (in which they relied heavily on the Lynne Stewart and Michael Cohen precedent). Not in their supplement (in which they added the Rudy precedent to those they relied on). Similarly, it didn’t come up in the hearing (in which Rudy featured prominently).

This was Judge Cannon going out of her way to find what she believed was a precedent on her own, one that she said supported an, “independent review for attorney-client privilege outside of the law firm context, in politicized circumstances.” But the opinion isn’t about attorney-client privilege. It was, explicitly, about press privileges.

In light of the potential First Amendment concerns that may be implicated by the review of the materials seized from Petitioners, the Court finds that the appointment of a special master will “help[] to protect the public’s confidence in the administration of justice.”

The opinion further holds there is no basis of law to do what Cannon did–intervene because of leaks (more on the leaks Cannon made up later).

Project Veritas and O’Keefe request that the Court order the Government to conduct a search for alleged leaks related to the Government’s investigation. O’Keefe Mot. II at 1. Petitioners do not provide a legal basis for their request or allege that the Government violated any specific rule, law, or policy

Crazier still, there’s no mention in the opinion, at all, about politics.

Nor should there be. This is a case about theft. We know it’s about theft because the two people who’ve already pled guilty in the case acknowledged it in real time (and pled guilty to transporting stolen goods across state lines).

They are in a sketchy business and here they are taking what’s literally a stolen diary and info . . . and trying to make a story that will ruin [the Victim’s] life and try and effect the election. [The Victim] can easily be thinking all her stuff is there and not concerned about it. . . we have to tread even more carefully and that stuff needs to be gone through by us and if anything worthwhile it needs to be turned over and MUST be out of that house.

We know, too, that it’s not just about a stolen diary. In addition to the diary (which by the way included Ms. Biden’s extensive accounts of her own addiction treatment, the most personal kind of medical record), the thieves stole,

tax records, a digital camera, a digital storage card containing private family photographs, a cellphone, books, clothing, and luggage.

Aileen Cannon believes that the investigation of this theft — the culprits have admitted it!! — is politicized.

Presumably Aileen Cannon believes an investigation into stolen property must be about politics because she believes James O’Keefe’s claim that this was an investigation started under Joe Biden. Had she done as much work to fact-check O’Keefe as she did to find precedents for Trump, though, she would know that this investigation was not started under Joe Biden.

It was started under Donald Trump.

The first call records in this investigation were obtained in November 2020, while Bill Barr was Attorney General (under Merrick Garland, such a step might have required the AG’s approval, but Barr was less interested in such protections). The first warrant targeting people purporting to play the role of journalists was obtained on January 14, 2021. That one, I imagine, did require Main DOJ approval, hopefully even from then-Acting Attorney General Jeffrey Rosen.

Aileen Cannon argues that the investigation started under Bill Barr and Jeffrey Rosen into the theft — this is not contested! — of things including medical and tax records is politicized, mostly because the victim is the current President’s daughter.

Effectively, then, Judge Cannon is arguing that private citizen Ashley Biden can have no recourse for when someone literally steals her medical and tax records, but Trump must have special judicial interference to prevent the FBI taking medical and tax records in the process of investigating 11,000 stolen records.

Two People Plead Guilty in Conspiracy to Transport Ashley Biden Diary

August 25, 2022/25 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

Aimee Harris and Robert Kurlander pled guilty today to a conspiracy to transfer personal items that Ashley Biden had stored in Florida to Project Veritas in New York.

Kurlander entered into a cooperation agreement.

Among other things, Harris stole Ms. Biden’s diary from a period when she was in rehab, one that ended up getting published around the same time the “Hunter Biden” “laptop” story broke. In addition, Harris stole a thumb drive with private pictures of the Biden family, and tax records. At one point during the negotiations with Project Veritas, Kurlander acknowledged what a shitty thing they were doing to Ms. Biden.

I’m expecting that they’re gonna pay up to $100,000 each maybe more . . . I made it so that the 10,000 is NOT your only payment as it was written and if this does turn into something good or blockbusting then I’ll get us more money. They of course come I across as the nicest people in the world but their job is to pay the least and they aren’t your or my best friends. They are in a sketchy business and here they are taking what’s literally a stolen diary and info . . . and trying to make a story that will ruin [the Victim’s] life and try and effect the election. [The Victim] can easily be thinking all her stuff is there and not concerned about it. . . we have to tread even more carefully and that stuff needs to be gone through by us and if anything worthwhile it needs to be turned over and MUST be out of that house.

Given that this is a conspiracy and that the Special Master in this case was finalizing her report to share information from (among others) James O’Keefe’s phone in July, the people described as potential co-conspirators in the document — including two Executives of Project Veritas (probably their Office Manager, as well as O’Keefe) and one Employee who had been involved in moving the materials across state lines — may be in a good deal of trouble.

To the credit of Trump’s campaign, they told Kurlander and Harris to bring the materials to the FBI.

“[Candidate-2] campaign can’t use it. They want it to go to the FBI. There is NO WAY [Candidate-2] can use this. It has to be done a different way . . .”

emptywheel coverage of Project Veritas scandal

Parallel Tracks: Project Veritas Served on Their Subpoena Stance

Sting Ray: Project Veritas’ Schrodinger’s Proxy

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

Citing “Considerable Detail” in Affidavits, Judge Denies Bid to Unseal Project Veritas Warrants

Jeffrey Rosen Targeted Project Veritas’ Office Manager Long before Merrick Garland Targeted James O’Keefe

Tick Tock: SDNY Tells Project Veritas, Again, To Wait Until James O’Keefe Is Indicted to Complain

May 7, 2022/28 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

As I noted back in March, when Project Veritas discovered what was clear from the start — that SDNY had relied on material obtained from emails involving James O’Keefe and two other Project Veritas associates to get warrants to obtain their phones — they tried to claw back not just the emails but also the phones.

[B]efore obtaining warrants to seize James O’Keefe’s phones, DOJ had first obtained emails that provided the evidence to get the warrants for his phones.

The Government disclosed many of its covert investigative steps in the ex parte context of the Affidavit, including each email search warrant it had obtained pursuant to the SCA in this investigation.

This is precisely what SDNY did with Michael Cohen and Rudy Giuliani, and it’s what Magistrate Judge Sarah Cave was talking about when she referred to the “considerable detail” in the affidavit.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.”

PV revealed that in a motion asking Judge Analisa Torres to claw back this information.

In March, DOJ told PV to wait until they were indicted to complain (here’s my thread on that response).

Days later, on March 30, PV tried again, petitioning Judge Torres to force the government to return all their phones and their emails.

Tick tock, tick tock.

On April 11, Judge Torres set a briefing schedule: the government had to file a response by May 6, and PV should file their reply by May 20.

Tick tock, tick tock.

Right on schedule, the government filed its response last night. The response is 28-pages long, much of which is dedicated to explaining to PV how the Fourth Amendment works and asserting that SDNY is quite confident the magistrates’ rulings findings there was probable cause that these accounts and devices would contain evidence of enumerated crimes will hold up. The discussion includes a particular focus on how SDNY already has precedents approving investigations that first obtain emails covertly and then seize phones overtly, as they did with Rudy Giuliani and (while they don’t rely on the precedent) did with Michael Cohen before that.

To the extent that the Movants are attempting to raise arguments with respect to execution of the warrants for email account data, there is no legal basis for such challenges at this stage of an ongoing grand jury investigation. Last year, Judge Oetken denied a similar challenge where the circumstances were materially the same: in the course of a multi-year, covert investigation, the Government obtained electronic data pursuant to judicially-authorized search warrants issued under 18 U.S.C. § 2703, the Government had reviewed that electronic data prior to the overt execution of search warrants for electronic devices, and a Special Master was appointed to oversee the review of the contents of the electronic devices (but not the electronic data obtained previously). Specifically, Judge Oetken ruled:

Giuliani and Toensing also seek pre-indictment discovery of the Government’s privilege and responsiveness designations in connection with the 2019 warrants [obtained covertly, pursuant to 18 U.S.C. § 2703]. They cite no legal authority for this request, and the Court is aware of none. If there is a criminal proceeding, any defendants will be entitled to discovery under Rule 16. There is no basis for compelling the Government to produce this information now, during an ongoing grand jury investigation.

Finally, the Court sees no legal basis for Toensing’s request for detailed information about the filter team review process, at least at the pre-charge phase of this matter.

In re Search Warrants Executed on Apr. 28, 2021, 2021 WL 2188150, at *2. The circumstances confronted by Judge Oetken are indistinguishable from those presented here. The Movants offer no authority contrary to Judge Oetken’s ruling, and the Government is aware of none. To the extent the Movants may potentially be entitled at some point to the disclosures that they seek, any such entitlement would only be triggered, if at all, by the filing of an indictment charging them in connection with the investigation, and not before.12

12 Or, potentially, by the filing of a civil claim, should one exist, that survives a motion to dismiss and proceeds to discovery.

Just for good measure, though, SDNY makes it clear they had reviewed all the emails before obtaining the overt warrants on O’Keefe and his flunkies, which makes it a good bet they relied on the email content to show probable cause to get the phone warrants.

With respect to the subscriber, non-content, and content information for email accounts referenced by the Movants, which were obtained pursuant to a grand jury subpoena and orders and warrants issued by federal magistrate judges pursuant to the Stored Communications Act (the “SCA”), 18 U.S.C. § 2703, the Government’s review of those materials was completed months ago, before the Movants initiated this Part I matter in November 2021.

I’ve stated repeatedly this was what happened here, only to have a PV lawyer claim I was wrong.

I was not wrong.

As I said, the bulk of this filing is just a primer in how the Fourth Amendment works, as applied. It is thorough, but it mostly feels like T-crossing.

More specific to the facts at hand, however, SDNY accuses PV of attempting to bypass the Special Master process they themselves demanded and Judge Torres approved last year.

Consisting of equal parts rhetoric, speculation, and inaccurate factual assertions, the motion is little more than a misguided attempt to end-run the Special Master process that this Court put in place and prematurely litigate the merits of the Government’s prior investigative steps.

[snip]

With respect to the devices that are subject to the Special Master’s review, the Movants’ attempt to put these arguments before the Court while the same arguments are pending before the Special Master appears to be an improper end-run around the Special Master. As explained above, these very arguments were fully briefed as of April 20, 2022, and are in the process of being decided by the Special Master. The Movants should not be permitted to short-circuit the process that this Court put in place, at their request, and which will adequately safeguard any potentially privileged materials that were contained on the devices.11

11 In the event the Court finds any of these issues material to the resolution of the motion, the Court should defer consideration until after the Special Master has issued a ruling on the same.

Even if Torres is sympathetic to poor James O’Keefe’s plight (and she accorded him better treatment than Rudy Giuliani got in the same court), she’s likely to be pissed about this aspect of things, that she went to the trouble of approving a Special Master and splitting the costs to pay for Barbara Jones’ services, only to have PV demand more.

And here’s why that matters: as SDNY noted, Jones is as we speak making final decisions about what SDNY gets.

The Special Master’s responsiveness review has largely been completed, with the contents of only one device currently under review. The parties have submitted briefs outlining their positions regarding the law and principles that should be applied to the Movants’ objections to the release of the items that the Special Master has deemed responsive to the search warrants to the investigative team. 2

2 The Movants submitted their briefs to the Special Master on April 1, 2022, the Government submitted its response on April 13, 2022, and the Movants submitted a reply on April 20, 2022.

Tick tock, tick tock.

Project Veritas was, almost certainly, already preparing their briefing for Jones when they demanded this end-run around the Special Master process. They had, almost certainly, reviewed what was about to be turned over to SDNY and how, having read the affidavits that PV is still trying to get, Jones interpreted the scope of the investigation. So not only does this timing seem to substantiate SDNY’s claim they’re trying to back out of their demands for a Special Master, but it makes it likely that by the time they file their own reply two weeks from now — tick tock, tick tock — Jones will already have submitted her recommendations regarding what materials SDNY gets.

And until then, SDNY explained in their law school primer to PV about how the Fourth Amendment works in practice, SDNY gets to keep all the evidence implicating a criminal investigation until they decide whether or not to charge anyone.

To the contrary, the electronic devices retained by the Government were obtained pursuant to search warrants issued by a Magistrate Judge after a finding of probable cause, and are currently in the final stages of the Special Master’s review process. Similarly, the contents of email accounts were also obtained pursuant to search warrants issued by Magistrate Judges after findings of probable cause, and the Government’s review of materials obtained pursuant to those warrants was completed months ago. There can be no dispute that the Government’s investigation is ongoing, that these materials include evidence relevant to that investigation, and that, if a prosecution results from the investigation, these materials will have evidentiary value.

[snip]

Third, the Government’s retention of the items and materials at issue is reasonable because its investigation remains ongoing and the return of the property sought would impair the Government’s investigation. The electronic devices at issue either have been determined by the Special Master to contain responsive items, are currently under review by the Special Master, or have not yet been reviewed by the Special Master due to technical impediments. Similarly, the email account content has been reviewed by the Government and has been determined to contain material responsive to the search warrants. See, e.g., In re Search Warrants Executed on Apr. 28, 2021, 2021 WL 2188150, at *2 (denying pre-indictment motion to “return” to movants the “results from earlier search warrants of [movants’] iCloud and email accounts” because, among other reasons, “the review of the [earlier] warrant returns is now largely complete”). These items and materials are anticipated to have evidentiary value if a prosecution arises from the Government’s ongoing grand jury investigation. In light of the character of these items and materials and the status of the Government’s investigation, retention of the items and materials is reasonable at least until the Government’s investigation is completed or, in the event a prosecution arises from the investigation, until such time that the criminal case reaches its conclusion.

SDNY is not saying that a prosecution will arise from the materials seized from PV. But they are saying they’ve found evidence that would be relevant if they chose to do so.

And, SDNY repeats again in their primer on how the Fourth Amendment works, it’s only after SDNY makes that decision that James O’Keefe will have standing to challenge these searches.

Jeffrey Rosen Targeted Project Veritas’ Office Manager Long before Merrick Garland Targeted James O’Keefe

March 24, 2022/42 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

According to a recent NYT story, Project Veritas paid $50,000 to a former Mike Pence lawyer and House staffer, Mark Paoletta, to get members of Congress to push back against the criminal investigation into the rat-fucking organization.

After the criminal investigation into Project Veritas became public last fall, a prominent Republican lawyer who was lobbying on behalf of the organization and Mr. O’Keefe briefed a group of congressional Republicans on the case, to urge them to try to persuade the Justice Department to back off the investigation because the group did nothing wrong, according to a person briefed on the matter.

[snip]

Lobbying filings show that Mr. Paoletta was paid $50,000 during the last two months of last year to inform members of Congress about the F.B.I. raid on Mr. O’Keefe.

That’s really telling. After Project Veritas won a fight to get a Special Master appointed to review records seized in a raid on James O’Keefe and others last year, they balked at DOJ’s effort to make them foot the entire bill, telling a tale about their gritty “upstart journalism.”

The government argues that an upstart journalism organization with a current annual budget that recently hovers around $22 million is better suited to fund Special Master proceedings than a goliath arm of the U.S. government featuring a long-standing bloated budget, currently at $31.1 billion.2 The government’s demand that a press entity bear considerable financial burdens to defend against the government’s unconstitutional attack on a free press is corrosive to the First Amendment. The exercise of First Amendment rights is a guaranteed right, not a luxury subject to taxation at the government’s whim. Imposing daunting costs during the pendency of an investigation meant to resolve important First Amendment questions inflicts its own kind of abridgement. When exorbitant costs may be levied against the media simply for acting in accord with settled First Amendment precedent, the process becomes the punishment.

[snip]

For Project Veritas, an upstart journalism organization, each dollar spent on Special Master fees and expenses is a dollar not spent publishing news stories or investigating leads.

They won that fight and thus far, Special Master Barbara Jones has billed almost $40,000, which will be split 50-50.

It turns out, though, that PV’s claim that they would spend every cent saved on Special Master fees on what they euphemistically call “news stories,” was false. Instead, they were spending it to get Chuck Grassley (whose former top staffer Barbara Ledeen used to have close ties to PV), Jim Jordan, and other of the most corrupt Republicans to write letters to Merrick Garland complaining about “brazen and inconsistent standards” and “partisan or other improper motive.” (As we’ll see, it turns out they should have been complaining to Jeffrey Rosen.)

What’s interesting is those letters that Barbara Ledeen’s former boss and Jim Jordan and Ron Johnson signed all suggest they took their understanding of PV’s actions entirely from the public record. They cite news articles.

Congress was told that Don Jr was involved before the stupidest Republicans wrote to complain

Not so, as reported by the NYT. Paoletta apparently knew — and shared — details that had not yet been reported by the press. Paoletta knew of a September 6, 2020 fundraiser held by Elizabeth Fago and attended by Don Jr where Ashley Biden’s diary — allegedly stolen — was passed around.

In August, Ms. Harris reached out to Robert Kurlander, a friend who had been sentenced to 40 months in prison in the 1990s on a federal fraud charge and had expressed anti-Biden sentiments online, to say she had found the diary. The two believed they could sell it, allowing Ms. Harris to help pay for the lawyers representing her in the custody dispute.

New details from interviews and documents have further fleshed out what happened next. Mr. Kurlander contacted Elizabeth Fago, the Trump donor who would host the fund-raiser attended by Donald Trump Jr. When first told of the diary, Ms. Fago said she thought it would help Mr. Trump’s chances of winning the election, according to two people familiar with the matter.

Richard G. Lubin, a lawyer for Ms. Fago, declined to comment.

On Sept. 3, Ms. Fago’s daughter alerted Project Veritas about the diary through its tip line.

Three days later, Ms. Harris and Mr. Kurlander — with the diary in hand — attended the fund-raiser attended by Donald Trump Jr. at Ms. Fago’s house in Jupiter, Fla., to see whether the president’s re-election campaign might be interested in it. While there, Mr. Kurlander showed others the diary. It is unclear who saw it.

It appears that Paoletta had originally been told — and told members of Congress — that Don Jr advocated calling the FBI, only to follow up to express uncertainty about that point.

The lawyer, Mark Paoletta, said that upon learning about the diary at the fund-raiser, Donald Trump Jr. showed no interest in it and said that whoever was in possession of it should report it to the F.B.I. But shortly thereafter Mr. Paoletta, who had served as Vice President Mike Pence’s top lawyer in the White House, called back the congressional Republicans to say he was unsure whether the account about Donald Trump Jr.’s reaction was accurate.

We know from past history, Don Jr doesn’t call the FBI when offered dirt on an opponent. Instead, he says “If it’s what you say, I love it, especially closer to the election.”

Project Veritas was willing to pay $50,000 to tell members of Congress that this crime might impact powerful fundraisers (Fago was named on the PV warrants) and the former President’s son, but didn’t want to foot the full bill for a Special Master.

SDNY always gets emails before they do an overt search

The fact that PV told members of Congress that this involved the former President’s son explains why PV is so pissed upon discovering what has been obvious to me from the start: That before obtaining warrants to seize James O’Keefe’s phones, DOJ had first obtained emails that provided the evidence to get the warrants for his phones.

The Government disclosed many of its covert investigative steps in the ex parte context of the Affidavit, including each email search warrant it had obtained pursuant to the SCA in this investigation.

This is precisely what SDNY did with Michael Cohen and Rudy Giuliani, and it’s what Magistrate Judge Sarah Cave was talking about when she referred to the “considerable detail” in the affidavit.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.”

PV revealed that in a motion asking Judge Analisa Torres to claw back this information.

The government apparently disdains the free press, and candor to the Court and opposing counsel. In light of the government’s violations of Project Veritas’s First Amendment, journalistic, and attorney-client privileges, as well as the government’s attendant failure to disclose these matters before or during the litigation of our motion for appointment of a Special Master, Project Veritas requests that this Court, pursuant to its supervisory powers, inherent authority, and Fed. R. Crim. P. 41(g), enter an Order requiring the government to:

(1) immediately halt access, review, and investigative use of Project Veritas materials that the government obtained from Microsoft (cf. November 12, 2021 Order acknowledging pause in government extraction and review of James O’Keefe’s mobile devices);

(2) inform this Court and counsel whether the government used a filter team to conduct a review of the data it seized from Microsoft on the basis of both attorney-client and journalistic privileges;

(3) inform this Court and counsel of the identities of any prosecutors, agents, or other members of the investigative team who have reviewed any data seized from Microsoft, what data they reviewed, and when they reviewed it; and

(4) disclose to the Court and counsel the identity of any other third party to which the government issued demands for Project Veritas data under the Electronic Communications Privacy Act (“ECPA”) with or without a non-disclosure order.

This interim relief is necessary to avoid compounding the harm to Project Veritas caused by the government’s violations of law and principles of candor and to enable Project Veritas to seek appropriate further relief.

I’ve put the dates of these warrants below; those dates and targets totally undermine everything PV has been complaining about.

PV has been complaining about “journalists” when DOJ first found evidence of a crime from their office manager

That’s because the first person targeted at PV was their “human resources” manager; that may be a reference to Jennifer Kiyak, who is named in the warrant targeting O’Keefe but listed on Project Veritas Exposed as PV’s Office Manager.

An office manager would have been the one to arrange payment of $40,000, and by getting her emails and — given that the FBI first targeted her in a subscriber record, may have been traced backwards from contacts with Ms. Biden — DOJ probably obtained plenty of evidence that the “journalists” had done far more than journalism.

Moreover, the first warrant to get “journalists'” emails was obtained while Jeffrey Rosen was Acting Attorney General, and all but one of these warrants for email (the one against O’Keefe) were obtained before Merrick Garland was confirmed. All of these email warrants were obtained before Garland imposed his new media guidelines, guidelines that Billy Barr’s DOJ never adhered to.

In other words, PV has been complaining for months that Merrick Garland targeted “journalists” when in fact they should be complaining that Jeffrey Rosen targeted someone who would, in no way, under any administration, be covered by media guidelines.

DOJ tells PV to hold their complaints until they are indicted

DOJ’s response to PV’s wails (which I wrote up in more detail here) is genuinely hysterical. They say, over and over, that PV can wait until they’re indicted to challenge these warrants.

Movants can raise these issues if there is an indictment filed charging them in connection with the investigation,

[snip]

The materials referenced by the Movants were obtained pursuant to duly authorized legal process that are not subject to challenge by the Movants in this pre-indictment stage.

[snip]

Second, the Movants seek pre-indictment discovery regarding the process used to review the materials referenced by the Movants, the identities of those who participated in that process, and the identities of third parties on which other legal process may have been served in the course of the investigation.

[snip]

To the extent the Movants may potentially be entitled at some point to the disclosures that they seek, any such entitlement would only be triggered, if at all, by the filing of an indictment charging them in connection with the investigation, and not before.2 In the event of a criminal proceeding, as Judge Oetken noted, they would have the opportunity to litigate any privilege or suppression issues, but they cannot do so during the pre-indictment phase of an ongoing grand jury investigation.

They acknowledge that PV would love to know who or what else has been investigated.

Of course, the Movants, like any subjects of a federal grand jury investigation, would like to know about every investigative step the Government is taking during the course of a criminal investigation, but that is not the law, for good reason.

No doubt so would Don Jr.

It also suggested there are other aspects of this investigation that DOJ is keeping secret.

The Government refrained from publicly disclosing details of the investigation, and continues to do so, for the same reasons that this Court denied production to the Movants of the affidavit (the “Affidavit”) submitted in support of the issuance of the search warrant dated November 5, 2021 that is the focus of this Part I matter and that Judge Cave ruled should remain sealed: to protect the ongoing grand jury investigation.

Keep in mind, there are necessarily other warrants out there that list other crimes, such as ones involving Harris and Kurlander that would name theft itself. In fact, the first order targeting PV mentions 18 USC 873 — blackmail.

Which means we can’t rule out that the nomination of Fago to the National Cancer Advisory Board a month after the election might be under investigation too.

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

2020

June: Ashley Biden moves to Philadelphia.

July: Aimee Harris moves into space formerly occupied by Ms. Biden.

August: Harris reaches out to fraudster Robert Kurlander, who contacts Elizabeth Fago.

September 3: Stephanie Walczak offers diary to PV.

September 6: Diary is shared at a fundraiser attended by Jr.

Mid-September: Kurlander and Harris fly to NY with the diary. Spencer Meads travels to Florida and Harris shows more of Ms. Biden’s belongings.

Early October: A PV operative calls Ms. Biden and claims he wants to return the diary; PV takes her agreement as confirmation the diary is hers.

October 12: O’Keefe sends email, not mentioning Ms. Biden by name (but clearly referring to her) explaining his decision not to publish “Sting Ray” Story.

October 16: PV calls Joe Biden to extort an interview.

Late October: PV pays $40,000 for the diary.

October 25: National File publishes pages from Ashely Biden’s diary, linking parallel New York Post campaign targeting Hunter. It explains the provenance of the diary this way:

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 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.

November 3: PV provides the diary to local law enforcement in FL.

November 22: DOJ uses subpoena for subscriber information of PV’s Human Resources Manager.

November 24: DOJ obtains 2703(d) order for HR manager’s email headers from 9/1/2020 to present.

December 8: Fago appointed to National Cancer Advisory Board.

2021

January 14: DOJ obtains warrant for emails of Eric Cochran, Spencer Meads, and HR manager from 1/1/20 through present.

January 26: DOJ obtains warrant for emails from another PV “journalist” from 1/1/20 through present.

March 5: DOJ obtains warrant for emails of three other PV “journalists” from 1/1/20 through 12/1/20.

March 9: DOJ obtains email headers for additional PV “journalist” from 9/1/20 through 12/1/20.

April 9: DOJ obtains warrant for O’Keefe’s emails from 9/1/20 through 12/1/20.

October 26: Paul Calli call DOJ, asks for AUSA Mitzi Steiner, and asked to speak about the PV investigation; Steiner asked how Calli had obtained her name, what else he had obtained, and declined to speak with Calli.

October 27: Lawyers for Project Veritas inform the DOJ that they will accept service for a subpoena relating to the investigation

November 3, 3:49 PM: Search warrants for Eric Cochran and Spencer Meads approved.

November 4, AM: FBI executes search warrants on former PV employees, Cochran and Spencer Meads.

November 4: PV lawyers accept service of subpoena.

November 4, one hour after the search: Mike Schmidt reaches out to Cochran and O’Keefe for comment about the investigation.

November 5, 11:18 AM: Warrant for O’Keefe authorized

November 5: NYT publishes story on investigation including language that PV would later baseless claim had to have come from the FBI.

November 6: FBI executes a search warrant on James O’Keefe

November 6: Schmidt contacts O’Keefe for comment.

November 6: Lawyers for Project Veritas ask the FBI to sequester material from the phone.

November 7: DOJ declines PV’s request and states the FBI has complied with all media guidelines.

November 8, 6:11PM: DOJ emails PV and tells them the extraction may start as soon as the next day.

November 8: After PV says it’ll file a legal challenge, FBI says it’ll only stop extraction after PV files such a challenge.

November 10: On behalf of PV, Calli Law moves to appoint a Special Master.

November 11, 12:51-12:53AM: Calli asks for confirmation that DOJ stopped extraction and review on O’Keefe’s phone on November 8.

November 11, 7:57AM: DOJ responds that the substantive review of O’Keefe’s phone was paused upon filing of motion on November 10.

November 11; 2:13PM: Judge Analisa Torres sets initial briefing schedule; in response to Torres order, DOJ stops extraction of O’Keefe phone.

November 12: In response to DOJ request, Torres extends briefing schedule.

November 12: Greenberg Traurig lawyer Adam Hoffinger, representing Eric Cochran, asks for Special Master to apply to materials seized from him, as well.

November 12: Letter signed by FL attorney Brian Dickerson but apparently docketed by NY lawyer Eric Franz asks for Special Master to apply to Spencer Meads

November 12, 3:49PM: Calli asks for clarification on review and extraction.

November 12, 3:59PM: DOJ responds that, “upon the filing of your motion, the Government paused the review of all material obtained from the search of your client’s residence.”

November 14: Calli submits clarification letter regarding extraction and review.

November 15: Torres sets schedule in Cochran docket.

November 15: DOJ requests permission to reply to PV on November 19.

November 15: Calli requests inquiry into government leaks to NYT.

November 16: Torres grants permission to respond on November 19.

November 16: Ian H. Marcus Amelkin asks to delete initials of PV source, A.H., from docket.

November 17: Torres denies Amelkin request without prejudice.

November 17: Cochran motion to appoint Special Master.

November 18: For Meads, Dickerson formally moves for Special Master (and also complains that FBI seized dated devices).

November 19: Calli requests extension on response deadline for PV subpoena.

November 19: Government files opposition to request for Special Master and inquiry into purported leaks.

November 19: DOJ requests permission to respond to motion for extension on subpoena. Torres grants request.

November 21: DOJ opposition to extend subpoena deadline.

November 21: Government motion to oppose unsealing affidavits.

November 22: Torres denies motion for extension on subpoena.

November 22: PV reply to government opposition to Special Master.

November 23: Torres denies motion (including from RCFP) to unseal affidavits.

November 23: Cochran reply to government opposition to unseal affidavits.

November 24: Meads reply to refusal to unseal affidavits, including letters from House and Senate complaining to DOJ.

How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

December 19, 2021/25 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Mueller Probe /by emptywheel

It has been a week since Judge Analisa Torres appointed Barbara Jones as Special Master to review materials seized from James O’Keefe and two other Project Veritas figures, and prosecutors from the Southern District of New York have not made any public complaint to the terms of her order. So I’d like to emphasize what SDNY found tolerable in the Project Veritas matter as compared to the search of Rudy Giuliani’s phone.

These are the instructions Judge Torres issued for the Special Master review of Project Veritas’ devices.

The Government shall complete extraction of the materials from Petitioners’ devices. The Government shall provide the extracted materials to the Special Master.

The Special Master shall expeditiously conduct an initial review of the extracted materials to determine what materials are responsive to the search warrants. To assist with the Special Master’s review, the Government shall provide the Special Master, on an ex parte basis, with a copy of the search warrants executed on Petitioners, the underlying application materials for those search warrants, and any other information that will assist the Special Master in conducting her review. If the Special Master determines that the efficient administration of her duties requires the assistance of additional professionals, support staff, or expert consultants, she may submit a work proposal to the parties, who will have five business days to submit comments, after which time the Special Master may then submit the proposal to the Court for consideration.

Materials deemed to be responsive to the search warrants shall be provided by the Special Master to the filter team, which shall be walled off from the investigative team working on matters related to the investigation that is the subject of the search warrants or any investigation related to Petitioners.

The filter team shall conduct a review of the responsive materials to determine if any should be withheld from the investigative team on any grounds—including grounds related to any First Amendment concerns, journalistic privileges, and attorney-client privileges.

After the filter team conducts its review, Petitioners shall review the materials slated to be released to the investigative team and raise any objections. The Special Master shall rule on any objections and provide the proper materials to the investigative team. [my emphasis]

Effectively, SDNY will provide Jones all the contents of O’Keefe’s phones. She will then do a responsiveness review to identify the material responsive to the warrants targeting O’Keefe. That material will then go to an FBI filter team, which will review it for privilege. After that, PV will get to review the materials to raise objections (with no limit on the objections identified, though presumably these would be based on privilege). Jones will then rule on those objections and provide whatever she deems appropriate to the investigators.

That approach offers PV far more protection than the President’s former lawyer Rudy Giuliani is getting. In the Special Master review of materials seized from the former SDNY US Attorney, Judge Paul Oetken ordered Jones to conduct an initial privilege review.

The Special Master shall render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants dated April 21, 2021, and April 28, 2021, and executed on April 28, 2021 (the “Seized Materials”). The specific duties of the Special Master are as follows and shall include all powers necessary to carry out these duties:

a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties;

The parties then had a debate about the sheer scope of the seized materials. As part of that, SDNY agreed to limit the temporal range of Jones’ review to documents that date between January 1, 2018 and the date of execution in April 2021. But SDNY argued that there’s no basis for a Special Master to conduct a responsiveness review.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)). [my emphasis]

Ultimately, Judge Oetken agreed with SDNY, ruling — in an order that preceded Torres’ and therefore which SDNY could have pointed to as a precedent — that there is no legal authority mandating a Special Master review for responsiveness, rather than privilege.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

As Jones has made clear in one of her few public reports in the Rudy review thus far, for the files from this time period over which Rudy (or Victoria Toensing or Dmitry Firtash) don’t claim privilege, they’ll all go to the FBI.

These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

From there, FBI (with no filter team) will do a responsiveness review for the Ukrainian foreign influence peddling investigation and for any other warrants DOJ has happened to obtain targeting Rudy’s phones.

A recent Oetken order makes clear that, eight months after the seizure of these files, we’ll soon see some privilege battles take place in semi-public form, with description of the content of the materials sealed, but not the basis for privilege claims. At this point in the Michael Cohen fight, Trump chose not to fight privilege claims on some crime-fraud excepted communications, most notably pertaining to his hush payments.

The effect of these two reviews will be dramatically different. In PV’s case, only those materials pertinent to the alleged theft of Ashley Biden’s diary will ever become available to the FBI, and even after the FBI filter team does a privilege review, PV will have an opportunity to argue for withholding that material from DOJ. While this process might result in slightly more materials being shared with investigators than might have happened in response to a subpoena (and would have had the effect of limiting any data destruction), it gives PV something close to an opportunity to suppress evidence pre-charge. The review will also ensure that DOJ does not obtain evidence that might otherwise implicate PV, such as the way it permits “donors” to influence the timing of particular “reporting” campaigns.

Whereas, as I’ve laid out before, DOJ will have the ability to obtain materials from Rudy responsive to the Lev Parnas-associated investigation, as well as anything that might be responsive to warrants investigating other crimes, including (but not limited to) his role in Trump’s obstruction of the Mueller investigation and his role in Trump’s attempted coup.

It’s not like SDNY — nicknamed “Sovereign District” for their aggressiveness — to cede a legal point without a fight. But here, having just prevailed on the principle that there’s no legal basis for a Special Master to conduct a responsiveness review, they let a decision stand ordering a Special Master to conduct a responsiveness review, and only after that, to review FBI’s own privilege determinations.

The two different approaches may reflect not so much legal principle, but the relative goals of the prosecutorial teams and/or DOJ’s priorities. PV got its surrogates in Congress — and even tried to solicit Democratic support — for its claims that its extortion-like behavior is a journalistic function. Effectively, accepting a Special Master responsiveness review resets this matter close to where it would have been if PV was genuinely accommodating the subpoena in good faith (as it wasn’t, before the seizure). It also may be the case, however, that SDNY has reason to know what they’re looking for are Signal or Telegram texts involving O’Keefe personally, with the expectation that they’ll get other responsive documents via the subpoena.

That SDNY was so willing to accept the PV result, though, highlights how aggressively they fought to defeat any responsiveness review with Rudy. Their argument against a Special Master review for responsiveness, with a subject whose files are among the most sensitive imaginable, is precisely what makes those materials available for other possible investigations. That was a fight that SDNY — and Merrick Garland’s DOJ — was willing to make, and a fight they won.

Somehow and for some reason, the President’s former lawyer is being treated less favorably by his former office than your garden variety rat-fucker. The reasons why that might be bear some consideration.

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

December 17, 2021/46 Comments/in 2020 Presidential Election /by emptywheel

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’Keefe, 21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.

Citing “Considerable Detail” in Affidavits, Judge Denies Bid to Unseal Project Veritas Warrants

December 7, 2021/8 Comments/in 2020 Presidential Election, Press and Media /by emptywheel

Magistrate judge Sarah Cave just denied a bid by the Reporter’s Committee for the Freedom of the Press to unseal the warrant affidavits targeting James O’Keefe and other Project Veritas personnel.While she rejected the government’s claim there was an exemption for warrant applications in ongoing criminal investigations, she found that a balancing test supported the government’s bid to keep the affidavits secret.

Of particular note, Cave conducted an in camera review of the affidavit and determined that there was so much information about individuals who, “voluntarily or involuntarily,” had provided information for the investigation, releasing the affidavits would thwart cooperation in the investigation.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.” In re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021 at *4; see Amodeo II, 71 F.3d at 1050 (noting that if the confidentiality of cooperating witnesses “cannot be assured, cooperation will not be forthcoming”); Smith 985 F. Supp. 2d at 531–32 (noting that disclosure of search warrant materials would undermine ongoing investigation by, inter alia “officially confirm[ing] who some of the cooperating witnesses in these investigations are,” which “could lead to efforts by [the targets of the investigation] to frustrate the ongoing investigations”). Release of the information in the Materials “is likely to cause persons in [this] or future cases to resist involvement where cooperation is desirable,” and thereby undermine law enforcement interests. Amodeo II, 71 F.3d at 1050.

Cave describes that “the Materials include references to a number of individuals employed by or associated with Project Veritas. Their conduct in relation to the alleged criminal activity is described in considerable detail, although not all of that conduct may be criminal.”

Cave also determined that, because of the amount of detail the government obtained there was no way to redact the names in the affidavit to make it available that way.

Finally, the Court has carefully examined the Materials to determine whether redactions would be sufficient to protect the countervailing interests that outweigh the presumption of public access, and concludes that “no portion of those documents may be unsealed without compromising the interest in the integrity and security of the [I]nvestigation” and the privacy interests of third parties. In re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021, at *5. As noted above, the Materials contain not only the legal theories of the Investigation, but also details about the information the Government has obtained and from which sources. The nature and extent of any possible redactions to omit this information would “render[] unintelligible” the contents of the Materials, and could be “more likely to mislead than to inform the public” in the way that RCFP predicts. Amodeo II, 71 F.3d at 1052. Accordingly, the Court concludes that unsealing the Materials, “even in redacted form, cannot be accomplished at this stage without serious risk to the [I]nvestigation,” and they must therefore remain sealed at this time. In re Sealed Search Warrant Issued June 4 & 5, 2008, 2008 WL 5667021, at *5

We’ll have to wait to see what the government’s case is or was against Project Veritas.

But it sounds like there’s a good deal behind these warrants.

Posts

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

Special Master in Project Veritas Investigation Reviewed Crime-Fraud Submissions in December

DOJ Rethinks — but in a Few Areas, Expands — Access to Media Content

Journalism includes reporting on classified information

Expanded protection and a prohibition with exceptions instead of permission for exceptions

What journalism isn’t

Incorporation of cases against recent not-journalism cases

Aileen Cannon Calls an Investigation into “What’s Literally a Stolen Diary” … “Politicized”

Two People Plead Guilty in Conspiracy to Transport Ashley Biden Diary

emptywheel coverage of Project Veritas scandal

Tick Tock: SDNY Tells Project Veritas, Again, To Wait Until James O’Keefe Is Indicted to Complain

Jeffrey Rosen Targeted Project Veritas’ Office Manager Long before Merrick Garland Targeted James O’Keefe

Congress was told that Don Jr was involved before the stupidest Republicans wrote to complain

SDNY always gets emails before they do an overt search

PV has been complaining about “journalists” when DOJ first found evidence of a crime from their office manager

DOJ tells PV to hold their complaints until they are indicted

2020

2021

How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

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

Citing “Considerable Detail” in Affidavits, Judge Denies Bid to Unseal Project Veritas Warrants

Interesting links

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