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.
It’s sad the proportion of commenters who can’t distinguish editorial bias from law enforcement bias.
Anonymous says:
“For that reason Turley has a far-right activist monitoring these comment threads to make sure liberals never get the last word. Turley can’t possibly appear insufficiently loyal to Trump.”
I don’t know how you can be sure of that claim. When I criticize Turley for his hypocrisy in ignoring the advocacy journalism at Fox News, no one is able to cite a single example of criticism (except when Turley once criticized Hannity for *attending* a Trump rally, but NOT for his advocacy journalism in favor of Trump). Instead, I’m called names. Name-calling is not “getting in the last word” except for morons.
I don’t believe that Turley is concerned with appearing insufficiently loyal to Trump. He is a Never Trumper. By his own admission, he has never voted for Trump, and he has called out Trump’s past lying. Moreover, he called for Trump’s Congressional censure. This a loyal Trumpist would NEVER do, and no lying Trumpist here made a similar call.
Turley’s shame is that he does not condemn Trump’s Big Lie. Turley does not practice what he preaches, that is, speak the truth to the Trumpist lie that the election was stolen.
However, I have surmised that Turley is unable to be speak-out publicly on account of his employment at Fox which is defending itself from two billion dollar defamation lawsuits for recklessly broadcasting Trumpist liars. Turley could be deposed in discovery, and he does not wish to make any statements against the interest of his employer.
Turley is loyal to Fox, not to Trump. Fox is paying him handsomely, and it stands to reason that he does not wish to jeopardize that cash flow. In addition, it does not behoove Turley to alienate his growing “blog family” to which he raised a glass on Christmas. He may have had the taste of success in his mouth, but had I been there on that occasion, the taste in my mouth would have been unmentionable.
“When I criticize Turley for his hypocrisy in ignoring the advocacy journalism at Fox News, no one is able to cite a single example of criticism (except when Turley once criticized Hannity ”
Originally it was zero examples until Mespo corrected you and provided you the citation. Now you want to take credit for that example, but no one bothers to look for other examples. Why? Because you change your criteria all the time. Jeff, the last time you made a challenge about Jonah Goldberg, I answered it. Still, suddenly once again, you moved the goalposts and said you would debate Goldberg but not with S. Meyer because S. Meyer was familiar with Goldberg and didn’t have to spend the time looking things up.
You have made a fool of yourself each time, and now you are back to playing the same game. What should we do? Nothing but laugh at you and your exhibitionism. Your raincoat has been removed and what we see is a big nothing.
Keep repeating yourself without ever providing the details. Jeff, you are a serial libeler, but Turley won’t bother with you as he could squish you like the cockroach you are without batting an eye.
“Turley is loyal to Fox, not to Trump.”
Turley is loyal to the law. That irritates you because though he is a Democrat, he permitted his talents to protect the rule of law that so happened to protect Trump. That pis-ses you off because Turley has principles, something we have not seen demonstrated by you.
Perhaps “Trump’s Big Lie” is not a big lie except by those that refuse to see problems with the 2020 Election.
But then Leftists, Trolls, and Never-Trumpers shall never admit to themselves what was the truth behind the election.
What we do know for a fact is when Election Officials refuse to conduct or allow a detailed forensic audit of their performance in an Election…..that should be a big Red Flag Warning to all of us.
Perhaps, Professor Turley is wise enough to hold that kind of view and would prefer to see some accurate analysis of the 2020 Election that would provide a basis for him to offer his views on the matter.
Some audits are going on….and some Courts have offered limited opinions on alleged excesses but there has not been an adequate review as I see it.
What say we start with analysis of Rule/Law/Policy changes that occurred under the guise of Covid measures…..and determine what role they played in this.
Start with Un-attended Drop Boxes and the Mail In Ballot process…..was there fraud in the most vulnerable method of voting per Jimmy Carter and his UN sanctioned study on Voting?
Ask the questions and get the answers….and let the chips lay where they fall…..and actually convince us using factual evidence rather than the “Trust Us!” position being used now?
Ralph says:
“What say we start with analysis of Rule/Law/Policy changes that occurred under the guise of Covid measures…..and determine what role they played in this.”
The very idea that you believe the Covid pandemic was exploited by Democrats to make changes to the voting rules to help them win as opposed to saving lives demonstrates you suppose Democrats to be evil incarnate. With that mindset, there can be no honest discussion with you.
Ralph says:
“Perhaps, Professor Turley is wise enough to hold that kind of view and would prefer to see some accurate analysis of the 2020 Election that would provide a basis for him to offer his views on the matter.”
At first, Turley did not resist calls for investigations into the vote count but always indicated that even if the Republicans showed some voting irregularities, courts would be very unlikely to overturn an election. He has been dead silent on the matter for months. As I have said from the beginning, Turley is not a lying Trumpist thankfully. He may not denounce the continuing Big Lie, but he does nothing to support it either.
Russian troops are deserting. Plotting a coup against Putin.
Citizen journalism means that you don’t need no fancy book-learnin’ or a prestigious degree or title to present information to an audience.
Why would you need a degree for that?
#notrocketscience
If the readers and audience demand it, then anyone of any title should be able to suppy.
By your standard, it seems there should be no tabloids or paparazzi.
Getting the information somehow and publishing, disseminating, and communicating it. That’s journalism.
Then there was Chris Hanson.
Local TV news reporters engage in guerrilla journalism. Should they be fired for not doing real journalism?
O’Keefe Ain’t No ‘Journalist’..!!
Project Veritas Is Essentially A Private Spy Agency
For years James O’Keefe has featured himself as an ‘Investigative Journalist’. However his organization basically functions as an Intelligence Agency on behalf of far-right interests. The New York Times detailed this, a few months back, in an article that was reported by THE HILL (see link below).
Unlike real journalists, O’Keefe has never written a genuine news story. Instead his presumed ‘journalistic’ endeavors are limited to sting operations for the purpose of embarrassing liberals and, or, any organization unliked by conservatives. The New York Times revealed that O’Keefe consults with Erik Prince, founder of the Blackwater mercenaries contractor.
The NYT reported that Project Veritas, which gets substantial funding from the Koch Network, rented a Georgetown townhouse for entertaining FBI Agents with the intention of ensnaring them in prostitution stings. Apparently O’Keefe feels the FBI was insufficiently loyal to Donald Trump.
At the very least, Jame O’Keefe is a dirty trickster in the mold of Roger Stone. To call him a ‘journalist’ is an insult to the profession.
https://thehill.com/homenews/media/553489-project-veritas-ex-british-spy-surveilled-government-employees-to-expose-anti
Insult to the profession….you must be on drugs.
Those claiming Journalism status today in the American corporate media world….are frauds……they are partisan hacks.
I followed the link. Always a waste of time.
It is an article from May. The piece fails to provide one quote to support the headline. At least Project Veritas provides quotes. Recorded quotes.
The rest of the world are ungrateful a-holes who don’t deserve America. I’m appalled by the pro-Russian sentiment on some websites.
Since 1800, all of the technologies, inventions, innovations, and luxuries to make lives better….most of that came from America, not Russia.
Billions of people around the world would still be partying like it’s 1799 without the inventions that came out of America. Not much of a party that would be.
No refrigeration. No electricity. No air conditioning. No lighting. No television. They should be more grateful.
People just want what they want, the law be damned. What else is new?
Ukraine does not need to be a member of NATO yet to invite NATO forces on its territory.
Jason asks:
“So many attacks on Turley but none against his arguments.”
I don’t attack Turley’s arguments because I agree with his arguments by and large. I just criticize his inconsistency in deliberately refusing to make the same arguments against Fox News, Newsmax or One America Network.
How come Turley NEVER finds ANY fault with the advocacy journalism at conservative networks? You tell me.
Jason ; The leftist media advocates the following :
1) abridging the 1st Amendment
2) eliminating the 2nd amendment
3) protecting the flawed Roe vs Wade “decision”
4) Federal take over of elections
5) continual destruction of our borders
6) purposely not enforcing many many laws they deem an ‘issue’
7) Uncontrolled spending and ignoring inflation
8) abolishing Right top work laws in 27 states
I could go on and on. This is just barely the tip of the spear. And not most of these diabolical intentions are patently unconstitutional . Yet they want mob rule democracy on their terms or else. And you think advocating against any of this rubbish is somehow evil or vile ?.
Phergus asks:
“And you think advocating against any of this rubbish is somehow evil or vile ?”
No, I do not.
Now you kindly answer my question:
How come Turley NEVER finds ANY fault with the advocacy journalism at conservative networks? You tell me.
Phergus, you left off endless racial preferences and a war on objective standards to promote equality of outcome based on an abstract notion of proportional representation everywhere the preferred groups are “underrepresented,” as well as rabid advocacy of transgender ideology at the expense of women and girls. Identify politics has become a central part of the progressive movement.
Jeff, I think Turley was, and maybe still is, an establishment Republican. But like so many establishment Republicans, Turley has been whipsawed by the whirlwind of forces surrounding Donald Trump. For that reason Turley has a far-right activist monitoring these comment threads to make sure liberals never get the last word. Turley can’t possibly appear insufficiently loyal to Trump.
“Ashley Biden left her diary with some clothes in a house . . .”
The Bidens have a habit of abandoning important things: Ashley, her diary. Hunter, his laptop. Their father, his brain.
At 6:48 am JeffSilberman said; “Because Trump is the gravest threat to this country since McCarthyism. When Trumpism is vanquished, I’ll stop thinking about him.” The word vanquished means the killing of an evil arch enemy. JeffSilberman needs to take off his ANTIFA shirt and put down his PlayStation controller before he makes comments on this forum. His calling for the vanquishing of a one time president should be forwarded to the FBI. Hopefully not to Clinesmith who would change his statement to “not be vanquished.” Is he conspiring with FishWings to bring about their fantasies?
Funny calling Trump the “gravest threat to this country since McCarthyism.” when Leftism looks more like McCarthyism (censorship, cancel culture, The Biggest Lie [Russiagate]), than even McCarthy could dream of.
The Biden admin in less than a year, have done more damage to America, been more authoritarian than 4 years of MSM accused Trump being.
The gravest threat to America, is the so-called academia intellects infesting universities, company boardrooms, Leftist MSM, and the entertainment industry.
Thinkitthrough says:
“His calling for the vanquishing of a one time president should be forwarded to the FBI.”
Do it.
So many attacks on Turley but none against his arguments.
You noticed, it’s about his persona, not his policies.
You noticed, it’s about his persona, not his policies.
Its about stealing bandwidth from Turley. He is nothing but a parasite living of a productive host.
If we don’t have nobility in the United States, then why is there a Burger King?
Why doesn’t the FBI have a panty raid?
I like this analysis. By the way, we have no “First Family.” The POTUS is not “first.” We do not have a king. We do not have nobility. We are equals here in America.
“We are equals here in America.”
– Sir David Harrell
______________
Presumably, you enjoy countless afternoons blissfully sipping Dubonnets and Gin at the Polo Club with Sir Elon Musk.
____________________________________________________________________________________________
Nothing could be further from the truth.
“All men are created equal” is a polite but “incompetent, irrelevant and immaterial” phrase from the Declaration of Independence; it is entirely without even a modicum of weight or force.
Clearly, all men are equal in their ability to perceive and grasp that all men are not now, nor will they never be, equal, with few exceptions.
The Constitution provides freedom.
The Constitution does not provide equality.
Men merit their relative position in society by their abilities, efforts, accomplishments and diplomacy; by the effectiveness, the success or failure, of their “pursuit of happiness.”
Fishwings says:
“Facts will pin Turley against the wall soon enough and at the rate Turley has been complicit with Trump’s defense, his name will soon join the names of Wood, Powell, Rudy G. It’s a shame but he has brought this on himself.”
As much as Turley has disgraced himself to most of his liberal academic colleagues, friends and students, I definitely would not put Turley in the same boat as Wood, Powell and Giuliani. His shame is having sided with Fox News in the first place and, second, remaining there even after long-time employees have abandoned the network on moral principle all the while remaining dead silent.
It’s ludicrous to read Turley accusing:
“For the media, the concern is that some outlets are now acting like a type of state media for the Biden Administration.”
As if his *own* network, Fox News, was not a state media for Trumpism! Because Turley refuses to submit to questions, he cannot be held accountable for his unfathomable hypocrisy.
Donald Trump forever in our minds.
Because Trump is the gravest threat to this country since McCarthyism. When Trumpism is vanquished, I’ll stop thinking about him.
And, the diagnosis reveals itself: delusional. This guy probably still believes in the hysterical screeches of the Russian collusion hoaxers.
MFLAtty says:
“And, the diagnosis reveals itself: delusional. This guy probably still believes in the hysterical screeches of the Russian collusion hoaxers.”
I’m in good company because Turley has NEVER called the Mueller investigation a “hoax” unlike lying Trumpists.
When can we stop laughing at this nincompoop, Jeff Silberman? He needs help.
Viva la Trump@
Are you trying to caricature a delusional leftist? Turley has been one of the most honest and thoughtful commentators from the left (the very tiny sliver of that group that is not nutts).
Also, there were (and remain) Never Trumpers on Fox. Tell me: how many President Trump supporters are employed by MSNBC?
MFLAtty asks:
“Also, there were (and remain) Never Trumpers on Fox. Tell me: how many President Trump supporters are employed by MSNBC?
Turley is the ONLY Never Trumper at Fox, and, of course, there are no Trump supporters at MSNBC just like there are no supporters of Bill Cosby.
Take note of how jeff makes the goalposts very narrow, no Never Trumpers, which is a relatively small group outside of the left. Many don’t like Trump, but they are not Never Trumpers. Then he equates Trump to Bill Cosby, which is fallacious since there is no reasonable proof that any relationship Trump had wasn’t consensual. Perhaps Jeff should have equated Bill Cosby to Clinton and, to add perversity, Biden. A better comparison would be Trump to JFK. Can Jeff get anything right? No.
Jeff, it’s time you learned that you can’t defend your ridiculous statements. You have tried frequently and failed continuously.