The O’Keefe Project: The Times restrained (2)

The New York Times devoted an overlong editorial to a condemnation of the court order requiring it to disgorge privileged attorney-client memos advising Project Veritas on how to conduct its work lawfully. The Times published the memos online in connection with a story it ran on the memos. I posted the court opinion and order here. The Times editorial puts me in mind of the adage that no man is to be a judge in his own case.

The court was adversely impressed by the Times’s nonexplanation of how it obtained the memos. The Times asserts that it did so in normal “newsgathering efforts.” At page 7 of the opinion, however, the court quotes from the Times’s opposition to Project Veritas’s motion seeking relief. As the judge put it (emphasis in original, footnote omitted), “the Times incredibly admitted that ‘no apparent bribery…was used to obtain the memoranda.'”

I commented that the Times isn’t talking on this point. It is resting on its rights under the First Amendment. That is the case that it makes in the editorial “A Dangerous Court Order Against The New York Times.” The Times cites the Pentagon Papers case — New York Times v. United States — to argue that the court order is unconstitutional. The judge argues to the contrary in his decision.

One can’t get much sense of the relevant factual or legal background from the Times itself. Even if the Times is ultimately deemed to have the better of the argument — it makes a good one in the editorial — the comparison with the Pentagon Papers case is almost laughable. The (lawful) legal advice rendered to Project Veritas is not exactly a matter of public importance, let alone national significance.

In its editorial the Times argues the obverse: “Project Veritas’s legal memos are not a matter of national security.” Even the Times does not go so far as to argue that their publication is a matter of public interest.

The Times’s nod in the direction of limitations that may be imposed by considerations of national security is also laughable given its own actions. See my Weekly Standard column “Exposure” addressing the question whether the Times is a law unto itself. It is a question that lies in the background here.

The Daily Mail covers the Times editorial in its accustomed style here. The long Daily Mail story sheds a little more light than the Times editorial with the additional background it provides.

My college classmate Owen Hughes writes from Connecticut to comment:

I believe in the First Amendment and I think the NYT has badly abused the trust placed in it as an essential actor under the First Amendment. So, forgive me, I hope the NYT takes a real beating. More power to the judge in this case, and more power to O’Keefe.

My only other comment, as a lawyer with 40-odd years of caring for clients, is that attorney-client privilege is damn near sacrosanct. How can it ever be right to read the advice a client receives under privilege, and not just (unavoidably) learn the contents, but act upon them? To the direct detriment of that client? And then PUBLISH material based on them? I’m sorry, the taint is ineradicable and very black indeed. Yet the Times seems to see nothing amiss? To hell with them.

That is a perspective that has been not been reflected in the Times’s extensive coverage of O’Keefe and Project Veritas case so far.

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