New York Times Attacks Project Veritas, James O'Keefe for Using Lawyers

Joel B. PollakNovember 12, 2021

The New York Times published an article Thursday in which it attempted to cast suspicion on James O’Keefe and his Project Veritas for using lawyers to keep investigations within legal bounds, something every news organization does, or should do.

The Times has its own legal team that reviews stories and advises reporters and editors on how to avoid libel suits. But the Times uses the fact that Project Veritas hires lawyers to case aspersions on its reporting, calling it a form of “political spying.”

The Times based its reporting on legal memos obtained from Project Veritas’s lawyers:

The documents, a series of memos written by the group’s lawyer, 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 legal documents obtained by The Times were written several years ago, at a time 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.

Though it does not say whether the memos were leaked from law enforcement or the company, the leak comes after a controversial FBI raid on O’Keefe’s home.

Notably, one of the journalists who worked on the times story is Michael S. Schmidt, who won a Pulitzer Prize for reporting on the supposed link between President Donald Trump and Russia — a link that was later shown not to exist. Many of the Times stories relied on leaks from law enforcement and intelligence agencies, which falsely suggested “Russia collusion.”

The raid concerned a diary purportedly belonging to President Joe Biden’s daughter, Ashley Biden, which Project Veritas says it turned over to police and did not use in news coverage. (Liberal legal scholar Jonathan Turley called the basis for the raid into question, noting that it looked suspiciously like a government attempt to intimidate and suppress critical media, and noted that other media outlets had been curiously silent in Project Veritas’s defense, barely raising questions about the raid.)

Critics of the Times article noted that the newspaper — and its sources — might have violated O’Keefe’s legal rights:

The FBI is leaking attorney-client privileged files to a party adverse to Project Veritas in a civil lawsuit.

This is not a grey area.

It’s black letter criminal felonies committed by the FBI and the New York Times. https://t.co/Kgx98JWz5d

— Cernovich (@Cernovich) November 12, 2021

Technically, attorney-client privilege applies to communications from the client to the lawyer, not the other way around, though it could apply in this case if the lawyers cited communications from the client in their memos. Moreover, the “work product” doctrine prevents opposing counsel from obtaining materials an attorney has prepared in advising a client.

The Times notes that “Project Veritas is suing The New York Times over a 2020 story about a video the group made alleging voter fraud in Minnesota.” That raises questions about whether the Times article violated work product doctrine.

Others raised more basic concerns about privacy and the freedom of the press, which the Times seemed to cast aside:

The Executive Director of @FreedomofPress on why the DOJ targeting of Project Veritas and James O’Keefe is so “worrying from a press freedom perspective,” at least unless there is evidence of actual criminality.

Though rare, it’s actually not that hard to apply principles: https://t.co/2jkItecf28

— Glenn Greenwald (@ggreenwald) November 11, 2021

On Thursday, O’Keefe won a reprieve in court when a federal judge granted a hearing for his request for a “special master” who would review materials seized by the FBI for possibly privileged material before allowing the government to use it. The judge ordered the Department of Justice to stop extracting data from O’Keefe’s smartphone until the matter is resolved.

Criticizing a disfavored target for the mere fact that he or she has used an attorney has become a favored tactic of the left. President Donald Trump was literally impeached, for the first time, for the fact that he went to court to protect the legal privilege of communications with counsel. Earlier this week, the prosecutor in the Kyle Rittenhouse case attempted to impugn the reliability of a witness by noting he had a lawyer — a tactic immediately shut down by the judge in the case.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.