A federal magistrate judge in Manhattan has turned down a bid by a journalism advocacy group to make public details about the legal basis for an FBI raid last month on the home of a conservative activist and hidden-camera video producer.
The FBI seized cellphones in the early-morning, Nov. 6 raid on the apartment of Project Veritas founder James O’Keefe in Mamaroneck., N.Y., as part of an investigation that appears to center on the alleged theft of a diary belonging to President Joe Biden’s daughter, Ashley Biden.
The use of a search warrant to seize O’Keefe’s records raised the hackles of some First Amendment advocates, who said O’Keefe’s activities likely qualify for protection for members of the news media under federal law and Justice Department regulations. O’Keefe’s critics say his deceptive tactics and evident partisan bias disqualify him from any claim to being a journalist.
The Reporters Committee for Freedom of the Press formally asked the court to unseal the search warrant materials, including the application that federal prosecutors and the FBI submitted when seeking permission for the search. However, Magistrate Judge Sarah Cave ruled Tuesday that the records should remain under seal for now.
Cave cited Ashley Biden’s privacy interests as one factor justifying continued secrecy for the court files.
“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,” Cave wrote. “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 in important countervailing factor against granting public access.”
Cave also concluded that release of the records at this juncture could impact the privacy interests of other individuals and impair the ongoing investigation by revealing details about what the government has discovered thus far.
Reporters Committee attorney Katie Townsend said Tuesday that the group was still considering whether to take further action on the matter.
In the 19-page ruling, the magistrate judge referred to O’Keefe as one of the “subjects” of the investigation. Federal prosecutors use that term to describe someone whose activities are being actively examined by the investigation but who is not currently seen as likely to be charged.
If Cave intended to use the term in that sense, it would raise further questions about the raid on O’Keefe’s home, since prosecutors are not typically permitted to use search or seizure warrants to get unpublished media materials about crimes allegedly committed by others.
O’Keefe’s attorney has said that the conservative provocateur bought the “rights” to the diary from two individuals who claimed to have obtained it legally. O’Keefe said the people who turned over the diary found it abandoned in a room where Ashley Biden had been staying.
O’Keefe said his group never published anything from the diary because it could not confirm that it was authentic. He later tried to turn it over to an attorney for the Biden daughter but after that person wouldn’t accept it, the journal was given to law enforcement in Florida.
O’Keefe has asked the court to appoint a special master to oversee any searches of his phones, but federal prosecutors have opposed that request.
A district court judge in Manhattan, Analisa Torres, is still considering whether to implement such a measure, but she did instruct prosecutors and the FBI to pause their review of the devices while she mulls the issue.
Disclosure: Gerstein is a member of the steering committee of the Reporters Committee for Freedom of the Press.