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Citing Ashley Biden’s Privacy, Judge Refuses to Release Documents from Investigation into Project Veritas, James O’Keefe

Ashley Biden and Joe Biden appear at a Feb. 7, 2017 event in New York City.

Ashley Biden and Joe Biden appear at a Feb. 7, 2017 event in New York City. (Photo by Jamie McCarthy/Getty Images for GILT.)

A federal magistrate judge on Tuesday denied a request by a free press advocacy group to unseal court documents connected to a search warrant which targeted Project Veritas founder and Chief Executive Officer James O’Keefe.

Reporters Committee for Freedom of the Press (RCFP) sought access to the documents under the common-law presumption of access that attaches to federal court records. Federal prosecutors object to the unsealing of the documents, U.S. Magistrate Judge Sarah L. Cave noted in a 19-page opinion and order.

“On November 4, 2021, a federal grand jury sitting in the Southern District of New York issued a subpoena to Project Veritas, addressed to its counsel, Paul A. Calli, Esq., in connection with its official criminal investigation of a suspected felony,” Cave wrote while addressing the matter. “It has been publicly reported that the Investigation relates to a diary reported to have been stolen from Ashley Biden, the daughter of President Joseph R. Biden, Jr.

The judge continued:

On November 5, 2021, based on an affidavit sworn by a federal law enforcement officer (the “Affidavit”), the Court found that probable cause existed to believe that O’Keefe’s residence contained evidence of federal crimes, including conspiracy to transport stolen property across state lines and conspiracy to possess stolen goods in violation of 18 U.S.C. §§ 371, 2314, and 2315, and issued the Search Warrant, which permitted the FBI to “seize any and all cellphones” found in O’Keefe’s residence.

O’Keefe’s phones were seized Nov. 6; the federal government stopped reviewing material from the phones Nov. 11 and allowed a special master to sort out the material, Cave noted. The RCFP next on Nov. 15 moved to access “the search warrant application, supporting affidavit, return, and any other related judicial documents filed in connection with the” investigation.

Conservative activist James O'Keefe holds a press conference at the National Press Club on September 1, 2015 in Washington, D.C. (Photo by Chip Somodevilla/Getty Images.)

Conservative activist James O’Keefe holds a press conference at the National Press Club on September 1, 2015 in Washington, D.C. (Photo by Chip Somodevilla/Getty Images.)

Cave cited the three-pronged inquiry the Second Circuit follows to determine whether court records should be rendered open to public inspection: (1) whether the document sought is truly a “judicial document,” (2) the “weight of that presumption [of access] . . . and the resultant value of such information to those monitoring the federal courts,” and (3) the “balance” of the “competing considerations against[] the weight of the presumption.”

First, Cave ruled that the “Search Warrant itself is ‘unquestionably’ a judicial document because it ’embod[ies]
the performance of judicial functions.'” She refused to carve out “an exemption from the common law right
of public access for all ‘search warrant applications in ongoing criminal investigations'” as requested by the government (emphasis in original).

Second, citing a case involving the federal prosecution of former Trump attorney Michel Cohen, Cave said that she would “join[] other courts in this Circuit” by “holding that ‘search warrants and search warrant materials are entitled to a strong presumption of public access.'”

Third, however, Cave examined the “competing considerations” at play and analyzed two specific issues cited by federal prosecutors that might result from the revelation of the materials requested:  (a) “law enforcement interests,” and (b) the “privacy interests of third parties.”  Cave credited the government in both instances — even while acknowledging that “the presumption of access is ‘of the highest’ weight” when records are sought for inspection.

“The law enforcement interests the Government describes include the integrity of the ongoing Investigation by the grand jury, confidentiality of the identities of persons of interest, cooperation of persons in this or future investigations, and preventing potential subjects or witnesses from destroying evidence, tampering with witnesses, or fleeing,” Cave determined.

Additionally, Cave wrote (citations and internal punctuation omitted):

[U]nsealing of the Materials would disclose to the subjects the full range of potential criminal violations being investigated, the evidence obtained by the United States prior to the searches, and the information which the subjects and other individuals had provided to the United States or had failed or declined to provide. Disclosure of that information to the subjects—or other participants in the alleged criminal activity whose identities are unknown—creates the risk that they could conceal or destroy other evidence, influence information and testimony given by others, and otherwise delay and obstruct the Investigation.

[ . . . ]

[T]he Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials could subject them to witness tampering, harassment, or retaliation.

[ . . . ]

Release of the information in the Materials is likely to cause persons in this or future cases to resist involvement where cooperation is desirable, and thereby undermine law enforcement interests.

Cave also agreed with the government that “there are many uncharged individuals named in the Materials, each of which has a substantial privacy interest at this pre-indictment stage of the Investigation, including both witnesses to the alleged criminal activity as well as subjects of the Investigation” (again, internal punctuation omitted).

Cave continued by indicating the court would not support an invasion into the “privacy interests” of Ashley Biden.  From the opinion and order at length on this topic:

Finally, the Court is attentive to the fact that the Government is investigating potential criminal activity relating to the transmission of personal information about a private citizen, who happens to be the daughter of President Biden. In Amodeo II, the Second Circuit noted that “[c]ourts have long declined to allow public access simply to cater ‘to a morbid craving for that which is sensational and impure.’” 71 F.3d at 1051 (quoting In re Caswell, 18 R.I. 835, 836 (1893)). The Second Circuit thus reminded district courts that they “have the power to insure that their records are not ‘used to gratify private spite or promote public scandal,’ and have ‘refused to permit their files to serve as reservoirs of libelous statements for press consumption.’” Id. (quoting Nixon, 435 U.S. at 598). While the Court does not suggest that RCFP’s interest is of a prurient character, it does note that, given the details about Ms. Biden’s personal information included in the Materials, “the privacy interests of innocent third parties” — including the victim of the alleged criminal activity — is an important countervailing factor against granting public access. Amodeo II, 71 F.3d at 1050–51 (internal citation omitted).

After weighing out the interests, Cave determined that the government, not the journalists, prevailed.

However, she also noted that “the sealing of the Materials is likely not indefinite” — meaning they may likely some day come to light as the case unfolds.

Reads the opinion and order below:

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.