Feds don’t want to return electronics and data to James O’Keefe

James O'Keefe, chairman of Project Veritas, speaks at the Conservative Political Action Conference (CPAC) on Feb. 24, 2022 in Orlando, Florida (Photo by Joe Raedle/Getty Images.)

James O’Keefe, chairman of Project Veritas, speaks at the Conservative Political Action Conference (CPAC) on Feb. 24, 2022 in Orlando, Florida.

After confirming the need for an “ongoing” investigation, federal prosecutors resisted attempts by James O’Keefe, the founder of Project Veritas, to demand the return of electronic devices and data seized by the FBI from buildings occupied by himself and several of his associates. Although attorneys for O’Keefe, his associates and Project Veritas have argued that the government’s actions violate the First Amendment, federal prosecutors responded that the First Amendment does not protect Project Veritas or its people at this stage of the proceedings. .

Attorneys associated with O’Keefe and Project Veritas requested the return of the devices and data on March 30, 2022.

“The government opposes the journalism of Project Veritas,” wrote those lawyers, seeking the return of the material while defaming the federal investigation as little more than a political vendetta. “His investigation of Project Veritas and its journalists predicts the alleged ‘theft’ of an abandoned diary of Ashley Bidenthe 40-year-old daughter of then-presidential candidate Joe Biden, the government has launched an attack on the free press.”

The March 30 request to return the materials referred to the so-called “low-level theft” of Ashley Biden’s diary as a bizarre focus for a federal investigation and accused the government of using “mafia-busting tactics to investigating what falls under the Supreme Court precedent that applies to newsgathering, a non-crime.”

To this end, the submission of Project Veritas relies heavily on Bartnicki v. voppera 2001 US Supreme Court case that essentially says that journalists can publish material stolen by others.

From Veritas’ comprehensive submission:

The sources who legally provided the abandoned diary to Project Veritas have always stated that it was found abandoned in a house Ashley Biden temporarily occupied. The First Amendment protects journalists who receive material from sources, even if that material has been stolen. Under the guise of investigating this non-crime, the government has violated federal law by making an unprecedented use of search warrants to seize newsgathering work products, other documentary material, and extensive personal information from journalists James O’Keefe. Spencer Meads and Eric Cochran (“the PV Warrants”). This isn’t purely technical: Of the forty-seven electronic devices seized in predawn raids on the homes of Project Veritas journalists, only six were found that contained data responding to the PV warrants, and that data represents a fraction of the other privileged and personal information stored on those devices.

The March 30 document continued as follows:

This all-out attack on a news media organization should alarm anyone who believes in the First Amendment and the value of a free press. Project Veritas lawfully received the abandoned diary and other belongings, as well as the news-gathering work – the diary contained information which, if true, would be newsworthy and of public interest by any reasonable measure, as the subject of that information was then campaigning for the highest office – was legitimate, ethical and careful. Most fundamentally, this newsgathering is protected by the First Amendment as interpreted by Bartnicki v. vopper, 532 U.S. 514 (2001). Currently, the Rules of Criminal Procedure give the Court the power to protect the First Amendment and curb government abuse.

The government took action on Friday to oppose requests from Project Veritas’ lawyers to demand return of the material. Prosecutors relied heavily on the findings of a federal magistrate judge — a magistrate who, according to the FBI, found “probable reason to believe that the subject matter and the devices contained therein contained evidence of federal crimes, including conspiracy to transport stolen property across state lines and interstate transportation.” … of stolen goods.”

Prosecutors of the Southern District of New York further wrote that “the electronic devices held by the government were obtained pursuant to search warrants” and that “the contents of e-mail accounts were also obtained pursuant to search warrants issued by magistrate judges following findings of probable cause.”

Those same prosectors went further by referring to a “Special Master” – a retired federal judge who helps dissect the information received from a neutral perspective:

There is no question that the government’s investigation is ongoing, that these materials contain evidence relevant to that investigation, and that, if the investigation leads to a prosecution, these materials will have evidential value. Consisting of rhetoric, speculation and imprecise factual claims, the motion is little more than a misguided attempt to end the Special Master process this Court has instituted and to prematurely test the merits of the government’s past investigative steps. to litigate. It must be denied.

According to the government’s Friday filing, the FBI still has “two electronic devices obtained from O’Keefe’s residence, five electronic devices obtained from Cochran’s residence, and four electronic devices obtained from Meads’ residence. “

“Each of these devices has been found by the Special Captain to contain data responding to the search warrants, is currently under review by the Special Captain, or has not yet been accessible due to technical impediments,” the prosecutors added (citations omitted). †[T]The government has returned the devices determined by the FBI to contain no data within the time frame of the search warrants or by the Special Captain that do not contain data consistent with the search warrants.

The FBI also said that O’Keefe and Project Veritas have no legal right to assert First Amendment privileges at this stage in the proceedings. Those privileges, the government claimed, “would only be activated, if at all, by the filing of charges against them in connection with the investigation, and not before.”

Paul Callicthe lead attorney representing O’Keefe and Project Veritas told Law&Crime on Saturday that the government’s filing “smells like despair.”

Calli continued:

This is where these DOJ prosecutors and FBI agents hide facts, ignore the law, and actually make things up. The FBI has proven that it is now nothing more than a domestic intelligence-gathering agency bent on undermining the First Amendment and a Free Press. The FBI is using the legal system to harass a media company and its journalists who are critical of the current administration and to gather “evidence” from a non-crime in order to compile a secret file on American journalists. J. Edgar Hoover would be proud.

[ . . . ]

James O’Keefe and Project Veritas will continue to expose the DOJ’s mendacious attack on the First Amendment and a free press. Project Veritas is grateful for the support of principled organizations such as the ACLU and Reporter’s Committee for Freedom of the Press, who understand the importance of stopping and exposing the lawlessness of the DOJ and FBI’s actions.

As Law&Crime previously reported in detail, the raids on the property used by O’Keefe and his associates were part of an effort by the DOJ to determine whether Project Veritas or its associates engaged in criminal conduct when they received something alleged to be copies of a diary allegedly written by Ashley Biden, the daughter of the president. The well-trodden past has already been summarized by this website.

There have been no official allegations of wrongdoing to date against O’Keefe, his associates or Project Veritas, and these parties vehemently deny that they did anything illegal in connection with the escapade. Rather, those associated with the right-wing organization say they merely agreed to be the recipients of the alleged diary.

The March 30 Project Veritas motion and the government’s response are both enclosed below:

[Photo by Joe Raedle/Getty Images.]

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