The O’Keefe Project: The Times restrained (3)


The New York Times somehow obtained privileged legal memoranda rendering advice to Project Veritas on how to stay within the lines in the course of its journalistic work. The Times published the misappropriated memoranda and reported on them in a long story by Adam Goldman and Mark Mazzetti — two perpetrators of the Russia hoax with deep connections to the FBI/national security establishment. Their November 11 story is posted online here.

Project Veritas founder James O’Keefe and former associates were raided by the FBI in the investigation of the loss of Ashley Biden’s story. News of the raids was leaked to the Times. Two of the four reporters (count ’em) and two news researchers who contributed to the November 5 Times story on the raids — Michael Schmidt and Adam Goldman — were on the Times’s Russia hoax team. The work of the Times Russia hoax team on the Project Veritas stories signifies something deeply insidious about the Times project itself.

In my first post on the current court order restraining the Times, I contrasted two cases. In one case Project Veritas is under investigation in connection with the loss of Ashley Biden’s diary. In the second case Project Veritas is itself the victim of a misappropriation of privileged memoranda that somehow landed with the Times. In the former we have a federal case featuring FBI raids conducted under the supervision of the United States Attorney for the Southern District of New York and accompanying leaks to the Times. In the latter we have Project Veritas fending for itself in the lawsuit against the Times.

It’s a contrast that has gone unnoted in the coverage of the court order restraining the Times, but it seems to me of interest. Now Professor Jonathan Turley elegantly draws the contrast in his post “Ashley Biden’s diary: Will the FBI raid the New York Times?” Here is one slice that bears on my own 2006 Weekly Standard column “Exposure” (asking whether the Times is a law unto itself):

What is most striking is that the New York Times story is an attack on both core media and legal values. In his opinion, Judge Charles Wood describes how the New York Times was given the legal memos of PV counsel Benjamin Barr. The memos sound like typical legal analysis for a news organization in explaining the legal standards that would apply in possibly publishing material from the Ashley Biden diary.

I have worked both sides in media cases over three decades and I have written memos on the legal considerations for publication. Often these memos talk about how far a publication can go under existing law. That appears to be the tenor of the Barr memo. The New York Times clearly has a long line of such memos on the publication of classified or stolen material and would cry foul if those were stolen and published. The Times described the memos as providing “legal advice about how different PV operations could violate various laws, including the Espionage Act and Section 1001. The memos give guidance about how PV can remain in Mr. Barr’s view, on the right side of these laws.”

So the New York Times wants to publish the legal advice given to another publication on how to stay “on the right side” of federal laws. There is no concern how such reporting undermines the ability of reporters and lawyers to work in this field. In decades as a legal commentator, law professor, and lawyer in this area, I have never seen such an intrusion into this area of confidential communications of a news organization by another news organization.

Putting aside the horrendous judgment of the New York Times, the story returns us to the glaring contradiction with the Ashley Biden story….

In his penultimate paragraph Professor Turley writes: “The many questions in these cases should be answered by both the Justice Department and the media. For the FBI, the concern is whether it is now acting like a type of Praetorian Guard for the First Family. For the media, the concern is that some outlets are now acting like a type of state media for the Biden Administration.”

It’s not gonna happen, but Professor Turley’s excellent column deserves attention far beyond that which it is likely to receive as a post on his personal site. Please check it out and pass it on.



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