Media, Politics, Torts

Ashley Biden’s Diary: Will The FBI Raid The New York Times?

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.

 

145 thoughts on “Ashley Biden’s Diary: Will The FBI Raid The New York Times?”

  3. Perhaps we should assume this was a trap from the git go?
    Not that the NYT was ever in any jeapordy.

    1. Parts of Ashley Biden Diary were published by National File in 2019. In 2020 National File published all 122 pages. It has been all over the net for about 2 years. Now with Biden as president the FBI raids project Veritas that has not published it. There is something rotten in DC.

  4. Do I understand correctly that the FBI gave (leaked) PV files, docs, confidential info etc to NYT?
    Is this not a crime?
    And furthermore while PV was in litigation with NYT?

    2. Harry Reid turned out to a real American Hating Piece of Trash & a Commie Lover.

      One of his scams was to work a deal with the Commie Chinese Govt for Fed “Citizen’s Land” in Nevada for a Solar Farm, that as I recall was said to make his son $5 Billion & as part of the deal Reid used Fed Law Enforcement/BLM to attempt to drive Clivan Bundy & his family off their family Ranch(est. 1870’s ) in order to use that land for CO2 Carbon Sink Fraud.

      A Rotten piece of Cr.p that Reid. hiding behind one group of Mormons.

          1. I didn’t work any better today & my IT person isn’t available.

            If it doesn’t start working better soon I’m thinking about throwing it off the top of the roof, smash it good with a hammer & driving over it with the pickup 4 or 5 times.

            It’s just like rebuilding a car’s carburetor in the old days. 😉

            1. I used to threaten my computer with a toss out the window when it wouldn’t behave.

      2. And he abused the “speech and debate” clause of the Constitution by declaring a complete falsehood referencing Mitt Romney and payment of federal taxes during that Presidential campaign. When questioned about it after the election, his only comment was “Well, it worked, didn’t it?”

    5. May God have more mercy on your perverse ass than you would on your political opponents.

    7. Were you looking down when you said that? I can guarantee Reid is nowhere close to “resting in peace”.

    8. I hope he’s rotting in hell. I suspect the family will be grieving until they get their hands on the blood money.

  8. I am seriously concerned about the logic used by the Attorney General, Merrick Garland, in these issues of applying the law. Of course, I assume he knows what’s actually occurring within his own department; that goes without saying, but it needs to be pointed out. But it is his (lack of) knowledge of the law that scares the daylights out of me , since he is supposed to be the chief law enforcement official in the nation. Next to President Joe Biden, that is.

    But it appears Biden thinks Garland was handed a raw deal by Mitch McConnell and the Republican Party in the final year of the Barack Obama term, and both are using that issue as an excuse for revenge upon their political enemies.

    Is that how the Department of Justice (sic) is supposed to operate?

    1. Absolutely not. Biden and Garland should not seek revenge like lying Trumpists are doing to all those politicians who voted to impeach Trump or condemned his Big Lue.

      1. Donald Trump is under my bed. He’s hiding in the closet. He’s following me down the street. He’s everywhere!

          1. If any publicity is good publicity is good publicity, Trump should be very greatfull of your endeavors.

      2. You mean the impeachment about Russia collusion which has since been debunked and found out that Hillary and the Dems made the whole thing up

        1. Darryl,

          When Turley says what you say, then I’ll believe it. Until then, you are a liar.

  9. I have been watching Turley for decades. Mostly on MTP on NBC back when it was the best polotical show a long time ago with Russert. I can’t imagine what Tim would think of the fake news now and what a mess MTP has become. Turley is life long Liberal Democrat who is devastated with what has happened to his party and his country and the the Justice system. He would much rather be on CNN or NBC or the rest of the MSM. They won’t have him on unless he changes his view on the law to match theirs. Thus he shows up on Fox. Where he gets to comment on his views.

    1. We can’t know the reason why Turley is working for Fox. More than likely, MSNBC and CNN did not want to extend his contracts, or perhaps, he demanded too much remuneration. I doubt the decision was ideological. An attorney is a businessman. Maybe Fox made him an offer he could not refuse.

      As a Liberal, having Turley on their side is very useful to sell Fox’s lies. Mind you, I’m not suggesting Turley lies for Fox. The fact that a Liberal lawyer will not join the MSM in publicly condemning Fox’s false narratives is reason enough to keep him on the payroll. Turley’s pointing out the advocacy journalism at CNN and MSNBC, NYT, etc., while ignoring Fox’s, Newsmax’s, etc., is what keeps Turley in the good graces of his Fox employer.

      1. “As a Liberal, having Turley on their side is very useful to sell Fox’s lies. Mind you, I’m not suggesting Turley lies for Fox. …”

        A bunch of double-talk and innuendo. Honest discussion seems to be beyond your reach.

        1. S. Meyer the Idiot Troll (SMtIT) demonstrates his trolling once again. He always describes himself with his insults.

            1. S. Meyer the Idiot Troll (SMtIT) continues his trolling, while fantasizing about people he dislikes. What would a psychiatrist say about SMtIT’s fantasies?

              The only person who has to live with SMtIT’s fantasies is SMtIT himself.

              1. You have a lot in common with her. Both you and she end up being removed by those in authority. I’m not sure if she will be able to fly on that airline anytime soon, while you complain of being banned. Both of you have big mouths with little to say.

                1. The only thing I have in common with your fantasy, SMtIT, is that you have both of us in your head rent free. I’m so glad not to be you.

        1. Tip66,

          You are about the 10th person to accuse me of TDS. Shows the level of intelligence of lying Trumpists.

      3. Everybody but you lies? What does the “D” stand for in Democrat? “deceive” would be my guess. I listen to N. Pelosi say that the rules for impeaching Trump were similar to the ones used to impeach B Clinton. Then M Levine read the B clinton rules and the D Trump rules. The two rules were about as similar as a squirrel and a lion. But of course she never lies.

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