In legal memos, a hunt for red lines
Project Veritas gauged how far to push its deceptions
WASHINGTON — Hours after FBI agents searched the homes of two former Project Veritas operatives this month, James O’Keefe, the leader of the conservative group, took to YouTube to defend its work as “the stuff of responsible, ethical journalism.”
“We never break the law,” he said, railing against the FBI’s investigation into members of his group for possible involvement in the reported theft of a diary kept by President Joe Biden’s daughter, Ashley. “In fact, one of our ethical rules is to act as if there are 12 jurors on our shoulders all the time.”
Project Veritas has long occupied a gray area between investigative journalism and political spying, and internal documents obtained by The New York Times reveal the extent to which the group has worked with its lawyers to gauge how far its deceptive reporting practices can go before running afoul of federal laws.
The documents, a series of memos written by one of the group’s lawyers, detail ways for Project Veritas sting operations — which typically diverge from standard journalistic practice by employing people who mask their real identities or create fake ones to infiltrate target organizations — to avoid breaking federal statutes such as the law against lying to government officials.
The documents show, for example, Project Veritas operatives’ concern that an operation launched in 2018 to secretly record employees at the FBI, Justice Department and other agencies in the hope of exposing bias against President Donald Trump might violate the
Espionage Act — the law passed at the height of World War I that has typically been used to prosecute spies.
“Because intent is relevant — and broadly defined — ensuring PV journalists’ intent is narrow and lawful would be paramount in any operation,” the group’s media lawyer, Benjamin Barr, wrote in response to questions from the group about using the dating app Tinder to have its operatives meet government employees, potentially including some with national security clearances.
In a separate July 2017 memorandum, Barr emailed a representative of the group that the criminal statute involving false statements to federal officials “continues to be an expansive, dangerous law that inhibits Veritas’ operations.”
The documents give new insight into the workings of the group at a time when it
faces potential legal peril in the diary investigation — and has signaled that its defense will rely in part on casting itself as a journalistic organization protected by the First Amendment.
The FBI searched the homes of O’Keefe and two former Project Veritas operatives — Eric Cochran and Spencer Meads — as part of the investigation into the reported theft of Ashley Biden’s diary. O’Keefe has acknowledged receiving a grand jury subpoena in the case.
O’Keefe and his lawyer, Paul Calli, revealed new details about the diary investigation and FBI search to Sean Hannity on Fox News on Monday. During the interview, Calli said that Project Veritas had paid for the right to publish the diary but was unable to confirm it belonged to Ashley Biden and ultimately decided not to go ahead with a story about its contents. Excerpts
from the diary were later published by another conservative website.
O’Keefe said the FBI took his phones, which had confidential donor and source information. He said that neither he nor his group had done anything wrong, and that the FBI searches were an assault on the First Amendment.
The legal documents obtained by the Times were written several years ago, when Project Veritas was remaking itself from a small operation running on a shoestring budget to a group more closely modeled on a small intelligence-gathering organization.
In a statement issued by one of its lawyers, Project Veritas said it “stands behind these legal memos and is proud of the exhaustive work it does to ensure each of its journalism investigations complies with all applicable laws.” The statement said the work “reflects
Project Veritas’ dedication to the First Amendment.
Project Veritas is suing The New York Times over a 2020 story about a video the group made alleging voter fraud in Minnesota.
Most news organizations consult regulary with lawyers, but some of Project Veritas’ questions for its legal team demonstrate an interest in using tactics that test the boundaries of legality and are outside mainstream reporting techniques.
In a February 2018 memo, Barr said he was writing in response to questions from the group about the use of Tinder “to meet prospective agents of the ‘deep state’ or those with national security clearances.”
The document discussed the perils of the Espionage Act at length, and warned that Project Veritas should not try to obtain or publish any information related to national security. “In addition, as more facts and developments occur in these investigations, further legal consultation is advised,” the memo stated.
In another legal document, one about attending campaign events where the Secret Service vets attendees, the group was told its operatives could not use phony names or false pretenses.
“I believe going backstage or to closed events that require identification to the Secret Service is an invitation for a 1001 charge,” the memo said, referring to the federal law against lying to government officials, adding that in some cases, the group might be able to prevail in court using a First Amendment challenge.
O’Keefe likes to describe himself as a crusading journalist exposing wrongdoing, targeting liberal groups and Democratic politicians. He has boasted on social media that he is building the “next great intelligence agency.”
The Times provided copies of some of the legal memos to Bill Grueskin, a professor at the Columbia Journalism School in New York and former deputy managing editor of The Wall Street Journal and executive editor at Bloomberg News.
Grueskin, who has written about Project Veritas, said that some of Barr’s memos provided “pretty good advice,” particularly about when it is permitted to record phone conversations and other tactical recommendations.
He said that the undercover nature of Project Veritas’ work was more problematic.
“It opens you up to the charge that you’ve been intentionally deceptive and you lose your moral standing,” Grueskin said. “Every newsroom I’ve ever worked in has basically said undercover journalism was unacceptable. I’ve never had a reporter tell me he wanted to pose as somebody they were not.”