The Volokh Conspiracy

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Free Speech

"Project Veritas Says Feds Secretly Accessed Its Emails"

UPDATE 3/24/2022: Added link to government's response.


From Politico (Josh Gerstein):

In November, the FBI conducted predawn raids at the home of Project Veritas founder James O'Keefe and the homes of two other individuals who worked with the group. The agents acted with warrants that allowed them to seize phones and computers to search for evidence of trafficking in interstate property [apparently related to an investigation into the alleged theft of Ashley Biden's diary -EV].

The raids generated controversy in some circles because Project Veritas identifies itself as a news organization and the use of search warrants against journalists and news outlets is extremely rare due to Justice Department policies and a federal law passed in 1980 to limit such investigative steps.

After the raids, U.S. District Court Judge Analisa Torres agreed to a request by the group to put in place a special master to review the information on the seized devices to ensure that prosecutors did not get access to emails, text messages and other records that might be subject to attorney-client privilege or other legal protections.

However, in a letter Tuesday to a federal judge overseeing aspects of the probe, Project Veritas' attorneys said they recently learned that that for nearly a year before last November's raids prosecutors used gag orders to keep quiet other steps taken in the diary probe, including grand jury subpoenas and court-ordered seizures of all of the emails O'Keefe and several colleagues kept in particular accounts over a three-month span in 2020.

The ACLU, while saying it "deplore[s] Project Veritas' deceptions," and noting that the details of the government investigation aren't fully available, adds:

[W]e're concerned that the precedent set by this case could have serious consequences for press freedom. We're deeply troubled by reports that the Department of Justice obtained secret electronic surveillance orders requiring sweeping disclosure of "all content" of communications associated with Project Veritas email accounts, including attorney-client communications.

Compounding these concerns, the government suppressed information about the existence of the electronic surveillance orders even after the investigation became public knowledge and the district court appointed a special master to supervise prosecutors' access to Project Veritas' sensitive materials. The government must immediately suspend its review of the materials obtained pursuant to its electronic surveillance orders and fully disclose the extent of its actions, so that the court can consider appropriate relief.

You can see many of the filings in the case here.

UPDATE 3/24/2022: The government responds in this filing; an excerpt:

Despite the motion's bluster, the Movants cite no legal authority to justify the relief they seek, because there is none, and the accusations of Government misconduct are baseless. Put simply, the Government did not mislead the Court, and the subjects of a grand jury investigation are not entitled to information about that investigation or to dictate how the Government should conduct that investigation during its pendency. Instead, the Movants can raise these issues if there is an indictment filed charging them in connection with the investigation, or they can seek civil relief if they believe they have a claim of a constitutional or statutory violation that provides for individual rights of action against the Government. The Government does not respond to each and every accusation in the Movants' letter both because now is not the juncture to litigate these issues and because doing so would impair the integrity of the ongoing grand jury investigation. For the following reasons, the motion should be denied….