The Christmas Eve order for the New York Times to return confidential legal material from the conservative publication, Project Veritas, has led many to decry the imposition of a “prior restraint” on the media. I joined in expressing those concerns about courts preventing a news publication and then ordering the return of material sent by a source. That issue will be now be addressed in the courts. One question, however, remains: when will the FBI raid the home of New York Times publisher, A.G. Sulzberger?
That is what the Justice Department did when Project Veritas was given the diary of President Joe Biden’s daughter, Ashley – the subject of the New York Times story. They raided the home and seized the confidential communications of the founder of Project Veritas, James O’Keefe, as well as others associated with this publication.
Of course, Project Veritas is hardly popular with many in the media as an outfit known for ambush journalism. Yet, both publications were given stolen or abandoned confidential material. The difference in response appears based on source of the material and the political orientation of the publication. Ashley Biden’s diary was deemed a federal issue of such importance that the Administration conducted highly intrusive searches and seizures targeting a publisher. Conversely, the New York Times obtained core attorney-client material that was unlawfully taken from Project Veritas.
What is most striking is that the New York Times story is an attack on both core media and legal values. In his opinion, Judge Charles Wood describes how the New York Times was given the legal memos of PV counsel Benjamin Barr. The memos sound like typical legal analysis for a news organization in explaining the legal standards that would apply in possibly publishing material from the Ashley Biden diary.
I have worked both sides in media cases over three decades and I have written memos on the legal considerations for publication. Often these memos talk about how far a publication can go under existing law. That appears to be the tenor of the Barr memo. The New York Times clearly has a long line of such memos on the publication of classified or stolen material and would cry foul if those were stolen and published. The Times described the memos as providing “legal advice about how different PV operations could violate various laws, including the Espionage Act and Section 1001. The memos give guidance about how PV can remain in Mr. Barr’s view, on the right side of these laws.”
So the New York Times wants to publish the legal advice given to another publication on how to stay “on the right side” of federal laws. There is no concern how such reporting undermines the ability of reporters and lawyers to work in this field. In decades as a legal commentator, law professor, and lawyer in this area, I have never seen such an intrusion into this area of confidential communications of a news organization by another news organization.
Putting aside the horrendous judgment of the New York Times, the story returns us to the glaring contradiction with the Ashley Biden story. While one could debate the news value of the legal memos, the contents of the diary would be considered newsworthy under current torts standards governing civil liability. Like her brother Hunter, Ashley has struggled with addiction and the diary recounts that struggle of someone who would constitute a “public figure” under defamation law. While PV declined to publish the material, the content of the diary was published by conservative sites, which quoted from alleged passages where Ashley referred to “inappropriate” showers with her father. She also allegedly asked herself the question “Have I been abused?” and replied with “I think so.”
Of course, if the passages do not exist, it reveals a clear effort to falsely accuse the president, which is itself news. Indeed, one would expect a defamation lawsuit to be filed at this point. As with the Hunter laptop, Biden lawyers have refused to acknowledge the authenticity of such accounts or the diary itself.
Moreover, the New York Times itself acknowledged that Ashley Biden left her diary with some clothes in a house in Delray, Florida when she moved to Philadelphia. Conversely, the legal memos were marked confidential and, if opposing counsel were ever given such material in litigation, a court would order the return of the material.
According to the Times, on Oct. 16, 2020, Project Veritas wrote to then candidate Joe Biden and his campaign that it had obtained a diary Ms. Biden “abandoned” and wanted to question Mr. Biden on camera about its contents. The letter did not threaten publication of the diary (which PV had already declined) but added “should we not hear from you by Tuesday, October 20, 2020, we will have no choice but to act unilaterally and reserve the right to disclose that you refused our offer to provide answers to the questions raised by your daughter.”
That line was declared to be part of “extortionate effort to secure an interview” and one of his lawyers, Roberta Kaplan (who represented ex-Gov. Andrew Cuomo), wrote “[t]his is insane; we should send to SDNY.” Shortly thereafter Ms. Biden’s lawyers alerted prosecutors at the United States Attorney’s office for the Southern District of New York, which dutifully turned this into a federal investigation.
But compare the line from the New York Times email on November 11, 2021, telling O’Keefe that it planned to publish the contents and asking for a response. Unlike PV, it expressly stated that it was going to publish the contents of the stolen confidential memos and gave PV a date to respond. According to the court, it then “without waiting until the stated time…the Times published on its website full copies of the privileged legal memoranda.”
That however was not viewed as “extortionate” and the unlawful removal of confidential material was not viewed as a basis for an investigation by the SDNY of a publication just six miles away in Manhattan.
The many questions in these cases should be answered by both the Justice Department and the media. For the FBI, the concern is whether it is now acting like a type of Praetorian Guard for the First Family. For the media, the concern is that some outlets are now acting like a type of state media for the Biden Administration.
In the end, I would oppose a raid on the Sulzberger home just as I opposed the raid on the O’Keefe home. However, Sulzberger really had no reason to worry even after the O’Keefe raid. That is precisely the problem.