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Sting Ray: Project Veritas’ Schrodinger’s Proxy

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

When National File published the diary, it claimed to have received the diary from a “whistleblower” at another news organization that had chosen not to report on the diary. Id. No Project Veritas employee had authority to, or was directed to, provide the diary to National File. Nor to provide it to anyone else. Project Veritas had no involvement in National File’s publication of the diary and had no advance knowledge that National File intended to publish it.

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

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

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

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

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

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

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

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

Project Veritas conducted due diligence to determine if the diary was authentic and investigated the potential news story. After significant deliberation, Project Veritas decided not to publish the diary and not to run any news story about it. Despite an internal belief that the diary was genuine, Mr. O’Keefe and Project Veritas could not sufficiently satisfy themselves with the diary’s authenticity such that publishing a news story about it would meet ethical standards of journalism.

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

Parallel Tracks: Project Veritas Served on Their Subpoena Stance

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There’s a temporal problem in Project Veritas’ initial motion to appoint a Special Master to sort through materials seized from James O’Keefe in a search on November 6.

In one place, it described that, “At 6:00 AM on Saturday, November 6, 2021, the Federal Bureau of Investigation (“FBI”) executed a search warrant at Mr. O’Keefe’s home.” In another, it described that, “On November 5, 2021, at approximately 6:00 AM, the FBI executed search warrants at the homes of two former Project Veritas journalists, seizing their cell phones and other electronic devices.” But the very next paragraph describes that the O’Keefe search happened two days after the initial search: “Approximately two days later, the FBI executed a search warrant at the home of James O’Keefe.” Then, the letter describes that, “on November 4, 2021 – two days before its search of Mr. O’Keefe’s home — the undersigned had accepted service of a grand jury subpoena directed to Project Veritas.” Shortly thereafter, the letter says the earlier search happened on November 4, not November 5. “On November 4, 2021, at about the same time that FBI agents finished searching the home of a former Project Veritas journalist.”

Even while incorrectly stating that the initial search happened on November 5, the filing (and a subsequent one) don’t describe precisely when NYT’s Mike Schmidt twice reached out for comment about the searches, a key part of their obviously false narrative that Schmidt had to have gotten tipped off by the FBI.

The searches happened on November 4 and 6, at 6AM. I asked Mike Schmidt when he reached out but he didn’t respond, though Eric Cochran’s motion to appoint a Special Master says Schmidt reached out approximately an hour after the 3-hour search happened, so around 10AM.

The incorrect claim in that initial filing that the first searches occurred on November 5 may be nothing more than a typo, but sorting through the timeline alerted me to a chronological detail of some import that PV may want to obscure. PV got word themselves of the investigation, and reached out to one of the prosecutors involved, Mitzi Steiner, to find out more about the investigation on October 26. After Steiner refused to reveal anything about the investigation, lawyers for PV offered to accept a subpoena the next day, promising they had “material and helpful information” to the investigation. But after DOJ sent a subpoena on November 4 — almost certainly after the first searches, which targeted former PV staffers — PV persistently refused to say whether it would comply with the subpoena.

[T]he Government has repeatedly offered to be flexible about the Subpoena’s return date if Project Veritas confirms that it will comply with the requests therein. Project Veritas has repeatedly declined to do so, and similarly declines in its motion here to represent that it will comply.

And after PV repeatedly declined to ask for an extension in response to reassurances they would comply with the subpoena, they used the search on O’Keefe as an excuse to try to get such an extension.

Judge Analisa Torres denied PV’s request for an extension, which could have significant repercussions going forward.

There are several implications of this timeline. First, DOJ may believe, with some justification, that by first serving a subpoena on PV in response to their invitation to do so, only to have them equivocate about whether they would comply, they had fulfilled DOJ’s requirements to seek alternative resolutions, short of a search. That is, PV’s own games may have led to the search on O’Keefe.

The other issue is how this affects PV’s ability to claim expansive privilege protections. When PV alerted DOJ that it not only knew of the investigation, but who was leading it, DOJ likely took measures to identify how they had learned of the investigation. That’s a good way to identify attempts to obstruct an investigation. For example, after it became clear that Roger Stone was tampering in the Mueller investigation in 2018, Mueller obtained a pen register to learn with whom, besides Michael Caputo, Stone was communicating. That appears to be what alerted Mueller to how panicked Stone was by the Andrew Miller interview. That, in turn, is something that may have helped them obtain probable cause on the others. In a directly relevant example, for example, DOJ learned that Lev Parnas had deleted his iCloud account, which seems to be one of the things that helped SDNY obtain warrants for Rudy’s cloud-based accounts in 2019. When co-conspirators attempt to coordinate stories or delete evidence, it makes it a lot easier to obtain warrants.

As a result, there may be information pertaining to PV’s involvement in the alleged theft in three different places. First, I would be shocked if SDNY had not obtained the cloud-based communications of O’Keefe, Eric Cochran, and Spencer Meads. That said, DOJ has already indicated that it knows key communications of interest took place on Telegram, and it’s unclear what access DOJ has to that, independent of the phones Telegram texts were sent on. Then there are the contents of their phones, which may (and uncontroversially could) be subjected a Special Master review. If Torres grants PV’s request for a Special Master, it would give PV an opportunity to at least understand what the full legal exposure is. But then there’s the matter of the subpoena. I would be unsurprised if PV filed a challenge to the subpoena, which might go before Chief Judge Laura Taylor Swain rather than Judge Torres, and might be sealed as a grand jury matter. But this is a subpoena they invited, which will make it a lot harder to claim the subpoena was improper.

With Michael Cohen, the government was able to demonstrate during the Special Master review that some of the materials that Cohen might otherwise have tried to claim were privileged were not, in part because they had already seized his cloud communications (including his Trump Organization emails, which were hosted and turned over by Microsoft). Here, if PV responded to the subpoena at all, the government get a privilege log, laying out why PV thinks conversations O’Keefe had with 45 different lawyers were really privileged, thereby committing PV and O’Keefe to the claims they made in a subpoena response (assuming, of course, they don’t buy time by challenging the subpoena).

Whatever the merit — or abuses — of the focus on PV, PV’s games on the subpoena may have made efforts to protect O’Keefe far more difficult. And their game-playing with the subpoena will make it more difficult for other news outlets in the future to have DOJ treat efforts to accommodate reasonable requests in good faith.

It’s a complex issue and we don’t have enough information to know whether DOJ’s case — that PV was involved in the theft of Ashley Biden’s diary itself, and so not protected under any First Amendment precedent that might otherwise be available to them — is solid or if it instead charges them for involvement after the diary was already stolen, the First Amendment standard under Bartnicki which applies to journalists and non-journalists alike. PV is also trying to shield materials — including donor information and claimed attorney-client privileged materials — along with anything purporting to relate to journalism. The seeming desperation to hide donor information (which normally wouldn’t be involved in the scope of such a request) raises real questions about the sincerity of their journalistic claims, particularly given the recent revelation that PV would let donors dictate the timing of PV’s publications. And as DOJ noted in its response to PV’s motion for a Special Master to review the seized material, PV is not trying to protect the identities of its purported (second-hand) sources for the diary, so some protections that might otherwise apply do not here.

It is troubling that DOJ seized records from O’Keefe citing crimes that suggest liability for a crime after the fact, because if PV genuinely was only involved after the fact, it would pose a dangerous precedent for actual journalists. But the games that PV appears to have played with their subpoena dangle — and some changes they’ve already made to their story — suggest there my be more to the story.

Timeline

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

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

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.

2021

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.

NYT, Republican Opposition Rag

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Clark Hoyt has a really curious final column summarizing his three years as the NYT’s public editor. A lot of it is self-congratulation to the NYT for even having a public editor. But I’m most fascinated by Hoyt’s rebuttal of reader claims that NYT is a “liberal rag.”

For all of my three years, I heard versions of Kevin Keller’s accusation: The Times is a “liberal rag,” pursuing a partisan agenda in its news columns.

[snip]

But if The Times were really the Fox News of the left, how could you explain the investigative reporting that brought down Eliot Spitzer, New York’s Democratic governor;derailed the election campaign of his Democratic successor, David Paterson; got Charles Rangel, the Harlem Democrat who was chairman of the House Ways and Means Committee, in ethics trouble; and exposed the falsehoods that Attorney General Richard Blumenthal of Connecticut, another Democrat, was telling about his service record in the Vietnam era?

Hoyt names the Spitzer scandal, certain Paterson allegations, coverage of the Rangel scandal, and its recent Blumenthal attack as proof that the NYT is not a liberal rag.

With the exception of the Rangel coverage, these are all stories for which the source of the story is as much the issue as the story itself. Hoyt must hope we forget, for example, that Linda McMahon (Blumenthal’s opponent) boasted she fed the Blumenthal story to the NYT. Their denials that she had done so became even more unconvincing when the AP reported that the NYT hadn’t posted the full video, which undermined the NYT story.

I have no idea where the Rangel story came from (and in this case, I don’t care, because it’s clearly an important story about real abuse of power).

Then there’s Paterson. With this story, too, there’s a dispute about the NYT’s sources. Paterson says he was the NYT’s original source (they deny that too, and it’s true that this one is more likely to have been a Cuomo hit job). In any case, the NYT story fell far short of the bombshell that was promised for weeks leading up to it. Another political hit job that maybe wasn’t the story it was made out to be.

Which brings us to Eliot Spitzer. There are a number of possible sources the NYT might have relied on, starting with right wing ratfucker Roger Stone, who has bragged about being involved in that take-down. But they all, almost by definition, come down to leaks from inside a politicized DOJ. And those leaks focused not on any of the other elite Johns involved, not on the prostitution ring itself (which was, after all, exceptional only for its price tag), but on Spitzer. While I agree that Spitzer’s hypocrisy invited such a take-down, there wasn’t much legal news there, no matter how hard the press tried to invent it to justify the coverage.

But the list doesn’t end there. Elsewhere in Hoyt’s goodbye, he mentions his biggest regret–the Vicki Iseman story.

But throughout my tenure, Keller was gracious and supportive. When we had what was certainly our disagreement of greatest consequence — over the Times article suggesting that John McCain had had an extramarital affair with a young female lobbyist — Keller showed great equanimity. I said The Times had been off base. Though the story gave ammunition to critics who said the paper was biased, and it was no help to have the public editor joining thousands of readers questioning his judgment about it, Keller said mildly that we would just have to disagree on this one.

Say what you will about whether this was a worthwhile story, one with the wrong emphasis, or inappropriate scandal-mongering, it is pretty clear the Iseman part of the story came from disgruntled former Republican aides to McCain, probably in the neighborhood of John Weaver. Thus, it fits into this larger list of stories that serve not so much as proof of NYT fair-mindedness, but of its willingness to regurgitate oppo research in the service of powerful–often Republican–political opponents.

Then, finally, there’s the story that Hoyt doesn’t mention, to his significant discredit–the ACORN Pimp Hoax. Read more →

TeaBugger Victimology

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Oh, this is rich. Chief TeaBugger, James O’Keefe is preparing to argue that, the whole time he was sitting in jail with the son of the acting US Attorney for Shreveport, the US Attorney for New Orleans was abusing his rights.

Interviewed on Fox just moments ago, Andrew Breitbart claimed that alleged Landrieu phone tamperer James O’Keefe “sat in jail for 28 hours without access to an attorney.”

Breitbart, who has been on a public campaign defending O’Keefe, a paid contributor to Breitbart’s BigGovernment.com, also charged that the U.S. Attorney’s office in Louisiana leaked information to the press “helping” them to frame the episode as “Watergate Junior.”

It’s all retaliation, you see, because TeaBugger O’Keefe has pressured Eric Holder to investigate ACORN based on TeaBugger O’Keefe’s own attempts to frame the organization.

Asked by Fox’s Megyn Kelly what motivation the U.S. Attorney would have to make such an effort, Breitbart responded: “Well, it’s tied to the Justice Department. And we’ve been very aggressive in asking Eric Holder to investigate what’s seen on the ACORN tapes, and he’s ignored it.”

I guess Breitbart and his little TeaBugger honestly believe that the press, faced with news of inept Republicans entering Democratic offices in disguise with the intent of “interfering” with that office’s phones, would need a cheat sheet to make the connection with Watergate?

You know, several days ago I was willing to dismiss this as a stupid juvenile prank. But given the increasing concern that the perpetrators are showing–and their increasingly dubious stories–I’m convinced it merits a closer look.

In any case, I bet that O’Keefe is going to hang this complaint on being stuck with the representation of J. Garrison Jordan for 24 hours, rather than the big name Watergate lawyer who is now representing him, Michael Madigan. Because somewhere in the Constitution, I’m certain, it says citizens are entitled to a lawyer with Watergate experience, and may not be required to make do with the representation of local lawyers.

TeaBugger O'Keefe: Liberate the Tapes!! (No, Not THOSE Tapes!)

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There’s a real irony in James O’Keefe’s latest explanation for why he committed an alleged felony in an attempt to embarrass Mary Landrieu. He is now calling for the FBI to release the tapes that he and his accomplices made while in Landrieu’s office.

We video taped the entire visit, the government has those tapes, and I’m eager for them to be released because they refute the false claims being repeated by much of the mainstream media.

As you recall, one of the reasons why O’Keefe managed to impugn ACORN even though they had not engaged in any illegal activity is because he edited his videos significantly. He has refused, repeatedly, to release that raw video.

The unedited videos have never been made public. The videos that have been released appear to have been edited, in some cases substantially, including the insertion of a substitute voiceover for significant portions of Mr. O’Keefe’s and Ms.Giles’s comments, which makes it difficult to determine the questions to which ACORN employees are responding. A comparison of the publicly available transcripts to the released videos confirms that large portions of the original video have been omitted from the released versions.

[snip]

Experienced forensic investigators would be able to determine the extent to which the released videos have been manipulated to distort, rather than merely shape, the facts and the conversations, as ACORN alleges.

So when O’Keefe wants to rebut the FBI’s affidavit alleging that he “by false and fraudulent pretense … did in fact enter [] real property belonging to the United States for the purpose of willfully and maliciously interfering with a telephone system operated and controlled by the United States,” he’s in favor of releasing his video tapes. But when O’Keefe seeks to sustain an inaccurate narrative about ACORN’s alleged corruption, he refuses to release his tapes.

Read more →