I did not enter with high hopes, but I was still surprised by how quickly my interview with James O’Keefe went downhill. “You’re a former prosecutor, right?” the founder of Project Veritas asked just a few minutes after we began. “Why should I have any reason to believe that you’re gonna be fair here?”
The question might have been reasonable were it not for the fact that it was Project Veritas that had reached out to me to do a story about the organization and its legal troubles. They are the subject of a federal criminal investigation into the possible theft during the 2020 election of a diary that belongs to Joe Biden’s adult daughter Ashley. The group obtained the diary that September after she left it at a home in Florida and considered running a story about its contents but ultimately did not. After Joe Biden won in November, Project Veritas gave the diary to police in Florida along with other belongings of hers that they had obtained.
A couple of weeks prior to our interview, a representative for the group had called me out of the blue to suggest that I write a piece criticizing the Justice Department’s use of a search warrant to Microsoft in order to obtain emails from within the organization. They were evidently keen to stir up some media coverage that would be critical of the government’s investigation, and I told them that I might be interested in writing about the matter if I could speak to O’Keefe directly about the investigation.
As a fact-gathering exercise, the discussion turned out to be a deeply frustrating experience; O’Keefe was evasive and demonstrably unreliable. As a window into his methodology as a political and media operator — a combination of deflection, self-aggrandizement, and self-aggrievement, depending on what is most useful in the moment — it was an illuminating encounter if nevertheless rather annoying to endure and strangely pathetic to witness.
At one point, O’Keefe described the investigation as “the biggest and most egregious abridgment of freedom of the press in the history of the United States of America.” Later, he advised me, “You’ve never met an adversary like me, my friend.” (I told him that I did not regard him as an adversary.) He told me that he had been “incarcerated,” and when I asked him about this surprising claim, he said said that he was referring to when he was arrested in 2010 with three other men after they went into the New Orleans office of Senator Mary Landrieu for a sting operation. (O’Keefe and the others subsequently pleaded guilty to one count of entering a federal building under false pretenses.) He tried to unilaterally put information off the record after disclosing it and was taken aback when I told him that I would not agree. By the time we were done — I finally had to hang up on him and his handlers after repeatedly suggesting that we cordially end the discussion — he had threatened to sue me “like all the other people I’ve sued” and repeatedly called me a “disgrace.”
Exactly how Project Veritas came to acquire Ashley Biden’s diary in the fall of 2020, during the home stretch of the presidential campaign, remains the subject of considerable debate and speculation. That is in part because the government’s investigation is ongoing, and in part because Project Veritas has offered the appearance but not the reality of transparency on the subject.
After O’Keefe’s home was searched and federal investigators seized two cell phones, the organization objected in court, and media observers and advocates started questioning the basis for the search and the potential chilling effect on news outlets. The American Civil Liberties Union issued a statement denouncing the group’s “disgraceful deceptions” but expressed concern that “the precedent set in this case could have serious consequences for press freedom” in the absence of “good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary.” The Reporters Committee for Freedom of the Press joined Project Veritas in petitioning the presiding judges to unseal the government’s search-warrant application and the supporting affidavit — requests that were promptly denied, because even the targets of a criminal investigation cannot usually obtain copies of these documents unless they are indicted, which has not happened.
Project Veritas did win a request over the government’s objection to have the court appoint a special master in light of “potential First Amendment concerns” to review the material obtained by the government before investigators can access it themselves. Even hypocrites with a history of bias and bumbling are entitled to the protections of the First Amendment, but the irony of it all was still hard to ignore: Around the same time, Project Veritas was seeking a court order to prevent the New York Times from reporting on legal advice that the group had received, and as part of its legal challenge in the wake of the government’s search of O’Keefe’s home, the group asked the court to order the government to investigate whether someone had leaked news of the search to the Times — another legally baseless request that was summarily denied and, like the effort to secure a prior restraint, not exactly consistent with deeply principled advocacy for freedom of the press.
O’Keefe and Project Veritas have denied engaging in criminal conduct, arguing that the group “was not involved in any theft of property and that all of Project Veritas’s information on how the confidential sources found the property came from the sources themselves.” This has the appearance of a blanket denial, and many people have interpreted it that way, but a close reading of the their own court filings suggests some meaningful ambiguity on this point.
According to O’Keefe and Project Veritas’s lawyers, in early September 2020, a “tipster” reached out to them and “indicated that a new occupant” had “moved into a place where Ashley Biden had previously been staying” in Delray Beach, Florida. The tipster had found her “abandoned diary and other abandoned items,” including “an overnight bag with the ‘B. Biden Foundation’ logo and miscellaneous personal items,” such as “mail, photographs, and other property naming Ashley Biden” that would corroborate that the diary was hers. The sources purportedly “offered to bring the diary and belongings to Project Veritas in New York,” and about a week later, they did so. “Later in September,” according to the lawyers, “the sources gave additional Ashley Biden belongings to a Project Veritas journalist in Florida.”
The lawyers have also written that “Project Veritas undercover journalists attempted to contact Ashley Biden by reaching out to her known acquaintances” and that in “early October 2020, one of those acquaintances called a Project Veritas undercover journalist and conferenced into the call a person identifying herself as Ashley Biden,” who “responded that the belongings were hers and asked that they be delivered to a friend who lived in Delray Beach.” They have claimed that “there was compelling evidence of the diary’s authenticity” but that O’Keefe and Project Veritas “ultimately found that the evidence of authenticity did not rise to a level sufficient to satisfy their journalistic ethical standards for news publishing,” which O’Keefe explained in an internal email on October 12, 2020 that the group has quoted in its court filings.
It is worth lingering over just this version of events precisely because it is Project Veritas’s own. For one thing, why would anyone ever believe that someone had “abandoned” a “diary,” particularly along with other personal effects like “an overnight bag,” “mail,” and “photographs?” The word “abandoned” is a loaded one because it implies that the owner has made a deliberate decision to relinquish her ownership interest in the property, but a diary is an object whose value depends almost entirely on the idea that it would never be abandoned — like a wallet, a purse, or a valid passport. If you happen to come across objects like these, you usually try (or at least should try) to find the owner. And if someone did want to “abandon” a diary, they would probably dispose of it by throwing it away — particularly if it contained embarrassing or salacious material — rather than just leaving it at a friend’s place.
The point seems minor, but it is potentially a legally crucial one. If the people involved believed that Biden had left the possessions behind to store them temporarily — and had not actually “abandoned” them in the sense that she no longer wanted them or intended to retrieve them — then the removal of Biden’s belongings and their transportation to New York in consultation with Project Veritas may, as the government suggested in its warrant to search O’Keefe’s home, have violated various federal criminal statutes, including: conspiracy to transport stolen property across state lines, conspiracy to possess stolen goods, and interstate transportation of stolen property. It would be important to establish what O’Keefe and others at Project Veritas knew on this point, which is likely at least part of the reason that investigators have been acquiring the group’s internal communications. The fact pattern potentially gets worse at the point at which the group, as they have put it, obtained “additional Ashley Biden belongings from the home later in September,” depending on who was involved in gathering those items.
When I asked O’Keefe what led Project Veritas to believe that Biden’s belongings had been “abandoned,” I expected him to tell me that this was the sources’ specific claim. That probably would not relieve O’Keefe or the group from criminal liability if they knew that the claim was false, but it would form the basis for a decent defense. Instead, O’Keefe refused to answer me with any specifics — claiming, incorrectly, that “you have all the facts at your disposal.” “Someone can provide information to me — a third party — and I have a First Amendment right to publish that,” he told me. “Period.”
Well, question mark. If a news organization actively participates in stealing material, neither the group nor the people involved are immune from criminal investigation or from criminal liability. Jane Kirtley, a professor of media ethics and law at the University of Minnesota and the former executive director of the Reporters Committee for Freedom of the Press, has expressed concerns about the government’s investigation. But, as she told me, “the First Amendment is not a get-out-of-jail free card.” As one court has put it — in a line that prosecutors prominently quoted in one of their court filings — “there is a significant legal distinction between stealing documents and disclosing documents that someone else had stolen previously.”
The Times has reported what many people might suspect even just reading Project Veritas’s version of events — that Ashley Biden had not, in fact, “abandoned” anything. According to the paper, she had been staying with a friend, but in June 2020, she “headed to the Philadelphia area, planning to return to the Delray home in the fall before the lease expired in November,” and she “decided to leave some of her belongings behind.” This sounds much more like “storing” items than “abandoning” them. Per the Times, “the friend who had been hosting Ms. Biden in the house allowed an ex-girlfriend named Aimee Harris and her two children to move in,” and it was Harris who first found the diary.
When I tried in vain to get some specifics from O’Keefe about why Project Veritas believed that Biden’s belongings had been “abandoned,” he attempted to persuade me that the public record was sufficiently clear (even though it most definitely is not) and at one point asked, “What are the underlying facts? Because the New York Times — the Pulitzer Prize–winning team at the New York Times — has reported that apparently this diary was abandoned, according to them.” It is hard to say what is most interesting about this claim — the fact that O’Keefe seemed to be opportunistically praising a pair of reporters that he has repeatedly tried to mock and embarrass when doing so is useful to him, that he might have believed that he could simply attribute a claim to the Times that it did not make, or the possibility that he might actually believe that the Times’ reporting supports his theory that Biden “abandoned” her diary, in which case it is not particularly hard to understand why his conduct has attracted the attention of federal investigators who may not share his or his lawyers’ definition of the word.
I also asked O’Keefe to confirm or deny a separate and, if accurate, possibly damning claim from the Times: A “Project Veritas operative” had in fact “asked” the sources “whether they could retrieve more items from the home that could help show that the diary belonged to Ms. Biden.” This is not exactly inconsistent with the claim from O’Keefe and Project Veritas’s lawyers, who have said that “the sources gave additional Ashley Biden belongings to a Project Veritas journalist in Florida.” But it suggests more active involvement in potential criminal conduct. O’Keefe repeatedly refused to tell me whether the Times’ reporting on this point was accurate.
The Times’ reporting also substantially clouds other claims by O’Keefe and his organization. After O’Keefe’s internal email on October 12, 2020 — in which he purportedly concluded that the group would not publish a story on the diary — they reversed course several days later and tried to get Joe Biden to agree to an interview about the diary, which they purchased for $40,000 from the sources. Eventually, a lawyer for Ashley Biden told a Project Veritas lawyer that she intended to refer the matter to federal prosecutors in Manhattan.
The fact that Project Veritas was at this point on notice that a federal criminal investigation might begin — a fact that they have recently acknowledged in court papers — may also be relevant to the ostensible conclusion of the affair. “In early November 2020,” according to their lawyers, the group “arranged for the delivery of the diary and other abandoned belongings to the Delray Beach, Florida, police department.” The Times has reported that this did not happen until the day after Biden had been declared the winner of the presidential election, that the person who dropped off the material was a lawyer who “declined to reveal the identity of his client to the police,” and that, according to a police report, the lawyer told the police that the belongings were “possibly stolen” and that his client had “got it from an unknown person at a hotel.”
If this account of the return of Ashley Biden’s belongings is accurate, a skeptic might regard it as a very clumsy effort to get out ahead of a criminal investigation that Project Veritas knew might be headed their way.
When I spoke with O’Keefe, he asked me why I was not outraged by the group’s disclosure that the government had obtained Project Veritas emails from Microsoft even before the search of O’Keefe’s home, and that prosecutors tried to prevent Microsoft from disclosing this to Project Veritas even after the raid. It was during that discussion that O’Keefe unilaterally told me that he was giving me information “off the record,” which I did not agree to take off the record: “Microsoft wasn’t the only one. There’s more coming — other vendors. We know that. I have the documents. And that’s coming. And that’s off the record. I won’t share with you which ones yet.” (He was evidently saving this tidbit to roll out on Megyn Kelly’s show about a week later.)
By itself, the disclosure about the Microsoft emails generated more media coverage and more concerned statements, but as I told O’Keefe, it is hard to make any confident judgment about whether the government has engaged in investigative overreach without knowing much more, as a member of the public, than we do now. It is not hard to posit possible reasons for the government’s approach. Even though O’Keefe and Project Veritas were clearly aware of the government’s investigation by the time his home was raided, the government would still have an interest in trying to prevent them from knowing which sources of evidence were separately available to them. People often try and fail to delete emails from their personal devices that may still reside on email servers, such as Microsoft’s, and the government’s interest in O’Keefe’s phones may also have been premised on the use of messaging applications, like Signal or Telegram, that the government cannot access without the user’s own devices, as well as other locally saved information.
The judicial machinations and calls for public outrage are not likely to end anytime soon, since O’Keefe and Project Veritas appear to have settled on a fairly straightforward strategy to present themselves as aggrieved and principled journalists who are being politically persecuted by the Biden administration. Kirtley, for instance, remains concerned about the government’s actions but also observed that “Project Veritas has been quite adept at manipulating the narrative here to make themselves look like First Amendment martyrs.”
Much of O’Keefe and Project Veritas’s defense, at least when I spoke to him, depends on the specious claim that there is “no evidence” of criminal conduct because it is not possible for an onlooker to affirmatively detail exactly what happened or to fill in the conspicuous gaps in Project Veritas’s own account. Of course, it is true that everyone is legally innocent of criminal conduct until proven guilty in a court of law. This is also a useful decision-making heuristic in public life even though we are not bound by it. (If you believe that O.J. Simpson murdered Nicole Brown Simpson and Ron Goldman, then you have recognized this distinction yourself.)
But even in criminal cases, judges routinely tell jurors that they can weigh circumstantial evidence just as heavily as direct evidence, and that they should use their common sense when interpreting evidence and rendering a verdict. (For instance: Is it credible for people who discover a diary and other belongings to claim that they thought these items were “abandoned”?) This is precisely what we do in our everyday lives when we are not sitting on a jury, in much the way that we typically do not extend the benefit of the doubt to people with a history of being unreliable who are trying to marshal our support in a situation where the facts are far from clear.
At the moment, it very much remains to be seen whether the government will obtain sufficient evidence to criminally charge anyone at Project Veritas, including O’Keefe. That day may never come, in which case the calls for an accounting of the government’s investigation will justifiably grow louder, but until then, a considered agnosticism on the matter would be prudent. As Kirtley correctly observed, Project Veritas appears to have “become quite adept” at getting close to the bounds of the law without violating it, but it is possible that the group has finally crossed that line.
Correction: This article has been updated to clarify which episode O’Keefe was referring to when he said had been incarcerated.
