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Project Veritas loses journalistic and attorney-client privilege claims in Ashley Biden case

Project Veritas James O'Keefe

Project Veritas founder James O’Keefe describes the FBI’s search on a staffer’s home in a YouTube video.

The Department of Justice’s seizure of materials from the home of Project Veritas founder James O’Keefe and other staffers does not threaten First Amendment freedoms or journalistic privilege, a special master ruled on Tuesday.

“This is not a situation where the Government is deputizing Petitioners to do its investigative work for it; the Government is investigating Petitioners,” former federal judge Barbara Jones noted in a 21-page report and recommendation.

The petitioners listed in the ruling are O’Keefe and two other staffers: Spencer Meads and Eric Cochran.

On Nov. 3, 2021, the FBI executed a search warrant on O’Keefe’s property and those of two other staffers pursuant to their investigation into the theft and sale of Ashley Biden’s journal. Two people, Aimee Harris and Robert Kurlander, pleaded guilty to conspiring to commit interstate transportation of stolen property last August.

Since that time, Project Veritas appears to have been fracturing. O’Keefe announced his departure from the group earlier this year, as the group’s board accused him of spending “an excessive amount of donor funds in the last three years on personal luxuries.”

Known for sting-video operations of liberal targets and perceived enemies of former President Donald Trump, Project Veritas and O’Keefe depict the investigation as a threat to press freedom, and they have won the support of certain civil liberties and media advocacy groups in making that argument.

Judge Jones, who also served as special master in the Michael Cohen and Rudy Giuliani matters, rejected those arguments.

“Finally, I note that the concerns animating the qualified journalist’s privilege are not concerns here,” she wrote. “Very often, courts worry about reporters being targeted by abusive grand jury subpoenas […] or reporters becoming an ‘investigative arm of the judicial system, the government, or private parties.'”

“Here, the materials were seized pursuant to a search warrant, which required judicial approval,” she continued. “And the Government is not only seeking these materials to investigate Petitioners’ sources; the Government is investigating the conduct of the Petitioners as well.”

In assessing 14 assertions of attorney-client privilege, Jones found that the crime-fraud exception applied to 10 of them.

“Based on the materials submitted to me, including the search warrant affidavits, the government’s correspondence to me, and the guilty pleas of Harris and Kurlander, I find that the government has satisfied its burden of proving facts that show probable cause to believe that crimes or frauds have been committed,” she wrote.

As for the other four, Jones found two were privileged and two were not.

“In making these determinations, I am mindful that the ‘burden is not satisfied by a showing that the material in question might provide evidence of a crime or fraud. Rather the communication itself must have been in furtherance of a fraud or crime and must have been intended to facilitate the fraud or crime,'” the report states.

The report is followed by some 60 pages of exhibits itemizing Jones’s recommendation as to each seized document.

Project Veritas didn’t immediately respond to messages requesting comment. The U.S. Attorney’s office for the Southern District of New York declined to comment.

Read the ruling here.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."