The O’Keefe Project: The Times restrained

James O’Keefe and Project Veritas are suing the New York Times for defamation. O’Keefe and former Project Veritas associates were recently raided by the FBI in connection with the loss of Ashley Biden’s diary. FBI/national security reporters from the team that brought us the Russia hoax seem to have a pipeline into the investigation. They have reported on it with pornographic glee. I have covered it in a series of posts that are accessible here. All in all, it’s an important and disturbing story.

The Times somehow obtained privileged legal memos by a Project Veritas attorney rendering advice on how to conduct investigations within the legal lines. The Times posted the memos online and reported on them in one of those glee-filled stories.

Project Veritas sought relief from the trial judge in the defamation action. Yesterday the judge ruled in favor of Project Veritas, substantially granting it the relief sought. The judge’s 28-page ruling is posted online here and embedded below in helpfully highlighted form.

Among other things, the Project Veritas motion raised the question whether the Times improperly obtained the memos. Highlighted on page 7 is this notable passage (emphasis in original, footnotes omitted): “There is nothing in the record to show how the Times obtained the privileged memoranda that belong to Project Veritas. That information is solely within the Times’ knowledge and possession, and it has not offered any explanation beyond vaguely stating that the memoranda were obtained through its newsgathering efforts. However, in its Memorandum in Opposition, while attempting to distinguish the facts of the case Rose v. Levine from this case, the Times incredibly admitted that ‘no apparent bribery…was used to obtain the memoranda.’ The court finds that Project Veritas has met its burden of proving that the subject memoranda were obtained by irregular means, if not both irregular and improper means.”

Hoping to add something to what can be gleaned from the court’s opinion, I asked Project Veritas for comment. Last night I was provided this statement attributed to James O’Keefe:

The New York Times has doxed our sources, published our private attorney-client communications, and, after losing a Motion to Dismiss in which the New York Supreme Court said the terms “disinformation” and “deceptive” certainly applied to the Times’ reporting practices as to Project Veritas, was forced to admit they lied about the status of Minnesota law in an article that remains uncorrected to this day. The Times is so blinded by its hatred of Project Veritas that everything it does results in a self-inflicted wound.

The NYT editorial board characterized this as “dangerous.” What’s dangerous is printing the other side’s lawyer memos in an ongoing legal dispute. What’s dangerous is their September 2020 defamatory article being defended as “unverifiable expression of opinion,” in their answer to our defamation complaint, while that same article was used in a “fact-check” by USA Today to have our Minnesota video removed from Facebook. What’s “dangerous” is the NYT acting as an ombudsman for the Department of Justice when the FBI raids my journalists’ homes and seizes our reporter notes. What’s “dangerous” is the NYT attacking judges personally each time we win, an act that demonstrates they think they’re above the law. Executive editor Dean Baquet admitted, “We don’t get religion.” Their actions indicate they think they’re God.

The Times reports on this ruling in Michael Grynbaum’s story “Judge Upholds His Block on New York Times Coverage of Project Veritas.” Subhead: “The New York State judge also ordered The Times to turn over physical copies and destroy any electronic versions of documents a lawyer prepared for the conservative group.”

Grynbaum quotes Times publisher Pinch Sulzberger: “This ruling should raise alarms not just for advocates of press freedoms but for anyone concerned about the dangers of government overreach into what the public can and cannot know. In defiance of law settled in the Pentagon Papers case, this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.” Sulzberger also stated that the court order for the Times to return the documents had “no apparent precedent” and “could present obvious risks to exposing sources.”

This is Grynbaum’s account of the background:

The Justice Department is investigating Project Veritas for its possible role in the theft of a diary that belonged to Ashley Biden, President Biden’s daughter. The Times, in reporting on the investigation, published an article in November that quoted memos prepared by a lawyer for Project Veritas, which expounded on strategies that would allow the group to engage in deceptive reporting practices without breaking federal law.

Those memos predate, by several years, the libel case against The Times. But Project Veritas accused the newspaper of intruding on its right to attorney-client privilege. The group argued that the memos prepared by its lawyer were related to legal issues in its libel lawsuit against The Times and that the publication of the memos amounted to an attempt to embarrass a litigation opponent.

I will not be surprised if the Times prevails on its appeal of the ruling. Putting the legal merits of the ruling to one side, however, the court’s opinion is most interesting for its development of the facts. Resting on the First Amendment, as in its long editorial, the Times ain’t talking.

In one case O’Keefe and Project Veritas are under investigation in connection with the loss of Ashley Biden’s diary. In a 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 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.

OSC w Highlights by Scott Johnson on Scribd

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