James O'Keefe's Attorneys Demand Leakers be Identified in Case involving Ashley Biden's Alleged Diary

At 6 a.m. on November 6, a groggy James O'Keefe responded to pounding on his apartment door in New York's Westchester County wearing just his underwear. He was greeted by about 10 FBI agents—one holding a battering ram—who shined a blindingly bright light in his face, according to legal documents reviewed by Newsweek.

O'Keefe, the 37-year-old founder of the right-leaning non-profit organization Project Veritas, opened the door voluntarily, negating the need for bashing it in. The agents handcuffed him in his building's hallway, presumably in full view of neighbors who were curious enough to drag themselves out of bed to check out the commotion.

The early morning raid set in motion a debate about First Amendment protections that has only grown louder, including from some voices that may be unexpected. On Sunday, ACLU senior staff attorney Brian Hauss noted that, while "Project Veritas has engaged in disgraceful deceptions ... the precedent set in this case could have serious consequences for press freedom."

The FBI that morning was searching for information about a diary allegedly lost by or stolen from Ashley Biden, the president's daughter. Two of O'Keefe's cell phones were seized, replete with privileged communications between himself and three dozen attorneys regarding his lawsuits against the New York Times, CNN and Twitter. Conversations also included advice about the legality of O'Keefe's methods that involve hidden cameras and actors who trick their targets into revealing embarrassing information about themselves or their employers. The phones also hold donor information that was meant to be private.

On Monday, Calli Law, defense attorneys for O'Keefe, fired off an email to Judge Analisa Torres claiming that "government leaks plague the government's diary investigation," noting that the Times published legal compliance memoranda believed to be on the seized phones.

The email to Torres is replete with accusations of leaks to Times reporters Michael Schmidt, Adam Goldman and Mark Mazzetti, and it demands that officials "inform the court if the government—including the FBI or any other governmental agency—leaked Project Veritas's attorney-client privileged memoranda to the New York Times," and that they "identify who at the government is responsible for the previous leaks."

"Our concern about such leaks is heightened because the New York Times is Project Veritas's adversary in pending civil litigation—Project Veritas sued the New York Times in Supreme Court, Westchester County, and has defeated the New York Times' motion to dismiss," reads the email obtained by Newsweek.

Documents indicate that O'Keefe obtained the diary more than a year ago, ahead of the presidential election, from tipsters (identified only as R.K. and A.H.) who found it possibly in a Delray Beach, Florida residence where Ashley Biden once lived. Sources say that when Project Veritas reached out to the Biden campaign, officials refused to acknowledge its authenticity, and the same is true when they called a phone number allegedly belonging to Ashley Biden; the woman who answered also ended the call without verifying the diary's authenticity.

Newsweek reached out to the Delray Beach Police Department to ascertain whether the diary had been reported stolen or lost, but did not receive a reply. O'Keefe never published the contents of the diary and instead turned it over to law enforcement. However, National File, an outlet unrelated to Project Veritas, published alleged excerpts of 39-year-old Ashley Biden's diary that included details of her previously disclosed problems with drugs.

"A critical issue is the extent to which the DOJ is selectively targeting journalists who are critical of the government," said Harmeet Dhillon, one of O'Keefe's attorneys. "It's such a stale issue that it really raises questions about why they are doing this now."

James O'Keefe Project Veritas Ashley Biden Diary
Lawyers for Project Veritas founder James O'Keefe have demanded that the identities of the people who leaked information from Ashley Biden's alleged diary be identified. O'Keefe is shown here at the 2021 Conservative Political Action Conference in Dallas. Brandon Bell/Getty

The raid on O'Keefe's home came two days after two other journalists who were associates of Project Veritas at the time were also raided, with law enforcement collecting phones and computers.

Officials were looking for evidence of crimes including "conspiracy to transport stolen property across state lines and conspiracy to possess stolen goods," according to the search warrant reviewed by Newsweek. Last week, a U.S. District Court ordered that "the government shall confirm via email that it has paused its extraction and review of the contents of Petitioner O'Keefe's phones." The order could be seen as a potential precursor to agreeing with attorney Paul Calli's request for the court to "appoint a special master to review the phone's contents."

"It seems to me that the DOJ had other reasons to seize these devices, having nothing to do with Ashley Biden and everything to do with hobbling the efforts of a journalism outlet regularly critical of the policies of the administration and its corporate allies," Dhillon told Newsweek.

Dhillon added that "well-settled law says a media outlet may publish even stolen material, as long as it didn't play a role in the theft. So why is the DOJ executing pre-dawn raids on Project Veritas journalists, given the total lack of any evidence that Project Veritas had a role in stealing the diary?"

The fact that Project Veritas never published the diary and allegedly surrendered it to law enforcement makes the situation more baffling. And both Calli and Dhillon are calling for a third-party investigation into the "cozy and conflicted" relationship, as Dhillon puts it, between the Times and U.S. law enforcement.

"The DOJ is giving a heads up to the New York Times about raids on journalists simultaneously to them happening. They called Project Veritas for comment within minutes of each raid," Dhillon said.

Newsweek reached out to the Times, but was told that the newspaper does not discuss its sourcing. The DOJ and the FBI did not respond to Newsweek's request for comment.

"The government's leaking of confidential grand jury details about its diary investigation to Project Veritas's competitor—the New York Times—the defendant in Project Veritas's defamation suit against the paper, is egregious," Calli told Newsweek.

"The leak of Project Veritas's attorney-client privileged memoranda and the publication of those memos by the Times shocks the conscience. These leaks corrode the rule of law and the integrity of the judicial process. Shame on the New York Times."

While O'Keefe has said he wasn't able to verify the diary belonged to Ashley Biden, or that she wrote what is on its pages, the search warrant repeatedly refers to "Ashley Biden's property" or her "stolen property," though without ever using the word "diary." The search warrant also does not indicate when the property was reported as stolen, who reported the alleged crime or when and where it was reported. Nor does the search warrant allow for the possibility that the "property" may have been lost or misplaced.

"Whether you like James O'Keefe or not—and it seems you're required to make that stipulation," said Dhillon, "Do you really want the U.S. government to decide who's a journalist and whether or not the DOJ has to honor the legal guardrails protecting the press in America? That's a troubling development."

Update, 11/15/21 at 8:18 p.m. ET: The story was updated to clarify where the diary was allegedly first located.