December 9, 2021

VIA ELECTRONIC MAIL

The Honorable Richard J. Durbin The Honorable Charles E. Grassley

Chair, Committee on the Judiciary Ranking Member, Committee on
United States Senate the Judiciary
Washington, D.C. 20510 United States Senate
Washington, D.C. 20510

The Honorable Gary C. Peters The Honorable Robert J. Portman

Chair, Committee on Homeland Ranking Member,
Security & Governmental Affairs Committee on Homeland Security &
United States Senate Governmental Affairs
Washington, D.C. 20510 United States Senate
Washington, D.C. 20510

The Honorable Thomas Jonathan Ossoff The Honorable Ronald H. Johnson

Chair, Permanent Subcommittee on Ranking Member, Permanent
Investigations, Subcommittee on Investigations,
Committee on Homeland Security & Committee on Homeland Security &
Governmental Affairs Governmental Affairs
United States Senate United States Senate
Washington, D.C. 20510 Washington, D.C. 20510

The Honorable Jerrold L. Nadler The Honorable James D. Jordan

Chair, Committee on the Judiciary Ranking Member, Committee on
United States House of Representatives the Judiciary
Washington, D.C. 20515 United States House of Representatives
Washington, D.C. 20515

The Honorable Carolyn B. Maloney The Honorable James R. Comer, Jr.

Chair, Committee on Oversight Ranking Member, Committee on
and Reform Oversight and Reform
United States House of Representatives United States House of Representatives
Washington, D.C. 20515 Washington, D.C. 20515

Re: Appointment of Special Master to Review Extracted Project Veritas Materials

Dear Senators Durbin, Grassley, Peters, Portman, Ossoff, and Johnson, and
Representatives Nadler, Jordan, Maloney and Comer:

MARK R. PAOLETTA | Partner SCHAERR | JAFFE LLP

(202) 494-6393 1717 K Street NW, Suite 900
[email protected] Washington, DC 20006
www.schaerr-jaffe.com
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I write further on the subject of my letter dated December 8, 2021, which I sent you
on behalf of my client Project Veritas, a non-profit news organization that is currently being
targeted by a Federal Bureau of Investigations (“FBI”) and Department of Justice (“DOJ”)
investigation designed to harass and intimidate the press. Yesterday, a federal district
judge sitting in the Southern District of New York entered an Order recognizing the critical
First Amendment concerns implicated by the government’s conduct and appointing a
retired federal judge to review cell phones that the government seized from Project
Veritas’s founder and two former Project Veritas journalists. The judge declined, however,
to order the government to investigate its leaks to the New York Times. These two
developments demonstrate the necessity of Congress exercising its oversight and
demanding answers from DOJ for its heavy-handed infringement on the First Amendment
and a free press.
On November 4 and 6, 2021, pursuant to an investigation into the alleged theft of
Ashley Biden’s diary, the FBI conducted dawn raids at the homes of Project Veritas founder
James O’Keefe and two former Project Veritas reporters. Agents seized electronic devices
containing attorney-client privileged materials, reporter’s notes, and donor information.
The FBI immediately began extracting those materials, refusing to wait even one day while
Project Veritas sought redress before a court.
Over the DOJ’s objection, Project Veritas sought appointment of a special master to
review the extracted materials and ensure that the FBI and DOJ are not allowed to go on
a fishing expedition through Project Veritas materials that are privileged or irrelevant to
the government’s diary investigation. 1 As Project Veritas argued, “Allowing the prying eyes
of government prosecutors to themselves alone review First Amendment protected
information – like newsworthy, confidential information lawfully obtained by reporters –
would send a chill to journalists nationwide.” 2 Yesterday, Judge Analisa Torres granted
Project Veritas’s motion to appoint a special master. 3 (Order attached).
Judge Torres’s decision is an important victory for the free press, the First
Amendment, and the rule of law. As she ordered, “In light of the potential First
Amendment concerns that may be implicated by the review of the materials seized from
Petitioners, the Court finds that the appointment of a special master will ‘help[] to protect
the public’s confidence in the administration of justice.’” 4 Her decision to appoint a special
master should be applauded: it demonstrates that “First Amendment press rights will be

1 Ltr. to Judge Torres, In re Search Warrant dated November 5, 2021, No. 1:21-mc-00813-AT (ECF No. 1).
2 Id.
3Order, In re Search Warrant dated November 5, 2021, No. 1:21-mc-00813-AT (S.D.N.Y. Dec. 8, 2021) (ECF
No. 48).
4 Id. (quoting United States v. Stewart, No. 02 CR. 396 JGK, 2002 WL 1300059, at *8 (S.D.N.Y. June 11,

2002)).
December 9, 2021
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taken seriously, even when the press has the courage to investigate the family of the
current President.” 5
To ensure that Project Veritas’s rights are protected, both the special master and a
filter team will review materials before they are given to the investigative team. After the
government completes its extraction of the materials from Mr. O’Keefe and the former
reporters’ electronic devices, the government must provide the extracted materials to the
special master. The special master will then determine which of the extracted materials
are responsive to the search warrants and provide only those materials to a filter team of
DOJ attorneys who are walled off from the investigative team. The filter team must
determine if any materials should be withheld from the investigative team for any reason,
including whether the materials are protected by journalistic privileges, attorney-client
privileges, or First Amendment concerns. After the filter team completes its review, Project
Veritas and its attorneys will review the materials that are proposed to be released to the
investigative team. If any materials should be withheld due to First Amendment concerns,
privilege, or other grounds, they may object, and the Special Master will rule on those
objections.
The FBI’s seizure of James O’Keefe’s phones is an unpardonable offense against the
free press and the First Amendment. It is a sad day in America when government agents
threaten to break down journalists’ doors with battering rams before seizing reporter’s
notes, donor lists, and attorney-client documents. These are the kind of abuses we expect
from authoritarian regimes, 6 not from our own government. Judge Torres’s order
appointing a special master and establishing rigorous procedures to protect Project
Veritas’s rights is an important recognition of the First Amendment issues at stake here.
Project Veritas also requested that the court order the government to conduct a
search for leaks to the New York Times. 7 Just as the FBI finished raiding the homes of
former Project Veritas reporters, a New York Times reporter contacted Mr. O’Keefe for a
comment on a story about the searches. The Times reporter also had details regarding the
DOJ’s investigation. Two days later, the same reporter contacted Mr. O’Keefe to ask him
whether FBI agents had searched his home shortly after the raid happened. The Times
could not have known about the raids as they were happening unless the government
leaked that information. When the New York Times published an article about the raids,
it included a statement that could only have been leaked by the government: “The Trump
administration Justice Department, then led by Attorney General William P. Barr, opened

5 Ltr. to Judge Torres, supra note 1.

6 Indeed, these kinds of raids on news organizations were decried by this administration when it was China,
instead of our own Justice Department, that posed a threat to the free press. See Antony J. Blinken, Marking
One Year of Hong Kong’s National Security Law, U.S. Dep’t of State, https://www.state.gov/marking-one-
year-of-hong-kongs-national-security-law/. See also HK’s Apple Daily raided by 500 officers over national
security law, REUTERS (June 17, 2021), https://www.reuters.com/world/asia-pacific/hong-kongs-apple-daily-
newspaper-says-police-arrest-five-directors-2021-06-16/.
7 Ltr. to Judge Torres, In re Search Warrant dated November 5, 2021, No. 1:21-mc-00813-AT (ECF No. 13).
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an investigation into the matter shortly after a representative of the Biden family reported
to federal authorities in October 2020 that several of Ms. Biden’s personal items had been
stolen in a burglary, according to two people briefed on the matter.” 8 This leak was
designed to gain leverage for the DOJ in court by attempting to preempt an argument that
it had a political motivation in investigating the press’s connection with the President’s 40
year-old daughter’s diary. In its court filings, the government did not deny the fact of this
leak, but simply ignored it. And on November 12, 2021, the New York Times published
several Project Veritas legal compliance memoranda authored by Project Veritas’s outside
counsel. 9 My client believes that these privileged memoranda were on Mr. O’Keefe’s seized
phones, and that the government may have leaked them to the Times, just as it leaked the
search warrants.
The leaks are shocking because the New York Times is a defendant in a pending
defamation suit by Project Veritas. 10 And they are particularly egregious because when the
U.S. Attorney’s Office issued its grand jury subpoena to Project Veritas, it requested that
Project Veritas “refrain from disclosing the existence of the subpoena to any third party”
to “preserve the confidentiality of the investigation.” 11 The government warned that
“disclosure of the existence of this investigation might interfere with and impede the
investigation.” 12 To try and silence Project Veritas in one breath while leaking information
to the Times in the next is rank hypocrisy.
The FBI and DOJ have been leaking information for years. To take just one example,
FBI Deputy Director Andrew McCabe leaked information about the investigation into
Hillary Clinton’s e-mails, and then, while under oath, lied about it to the DOJ Inspector
General. 13 Law enforcement agencies have the power to compel the disclosure of very
sensitive information. It is imperative that they not be allowed to destroy the lives of
citizens caught in the cross hairs by leaking information to the media.
Nevertheless, Judge Torres declined to order the government to conduct an
investigation into the leaks. 14 This demonstrates the limitations in addressing government

8 Michael Schmidt et al., People Tied to Project Veritas Scrutinized in Theft of Diary from Biden’s Daughter,

N.Y. TIMES, Nov. 5, 2021, available at https://www.nytimes.com/2021/11/05/us/politics/project-veritas-

investigation-ashley-biden-diary.html.
9 Id.
10 See Project Veritas v. New York Times Co., No. 63921/2020, 2021 WL 2395290, at *10-11 (N.Y. Sup. Ct.

Mar. 18, 2021) (Wood, J.) (Order denying New York Times’ Motion to Dismiss).
11 Id.
12 Id.
13See U.S. Dep’t of Justice, Office of Inspector General, A Report of Investigation of Certain Allegations
Relating to Former FBI Deputy Director Andrew McCabe (Feb. 2018),
https://oig.justice.gov/reports/2018/o20180413.pdf.
14 Order, In re Search Warrant dated November 5, 2021, No. 1:21-mc-00813-AT (S.D.N.Y. Dec. 8, 2021) (ECF

No. 48).
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misconduct through the judicial branch, and why it is vital that Congress exercise its
oversight. I urge you, as the authorizing and oversight committees of the FBI and DOJ, to
commence an investigation into these potential leaks. Doing so is critical to preserving
privacy rights and press freedom – particularly freedom for journalists who have the
courage to investigate this administration.
As I noted in my prior letter, it’s difficult to imagine the FBI taking such an interest
in a diary belonging to someone who wasn’t named Biden. And it’s also difficult to imagine
the FBI taking such draconian action against the free press if the reporter involved wasn’t
named James O’Keefe. Project Veritas has been a thorn in the side of the establishment
media and government for many years, using time-honored undercover investigative
tactics and a relentless commitment to exposing corruption, dishonesty, self-dealing,
waste, fraud, and other misconduct. Can anyone imagine the FBI arriving at the home of
New York Times Executive Editor Dean Baquet with a battering ram at 6 a.m. to seize
information the Times allegedly received in an unlawful manner for a story it never
published? It is inconceivable. In fact, because Mr. O’Keefe’s work has also focused on
exposing the biases of the legacy media, such as the New York Times, 15 these media groups,
by and large, have remained uncritical of the FBI’s raid to seize Mr. O’Keefe’s First
Amendment-protected material on sources and donors. The FBI and DOJ could count on
the silence of the legacy media because both the establishment media and this
Administration share an interest in chilling Project Veritas’s speech, which threatens to
expose the wrongdoing of both public and private actors.
The FBI’s despotic tactics to investigate an alleged stolen diary have been
undertaken because the alleged victim is the daughter of the President of the United
States, and the target is a journalist whose work is a threat to that President and his
Administration. This is unprecedented and unacceptable. I once again urge you to launch
bipartisan hearings into the FBI and DOJ’s shocking conduct in this case.
Sincerely,

Mark Paoletta
Counsel for Project Veritas
Enclosure

15 Dean Baquet, the executive editor of the New York Times, has called Project Veritas’s work “despicable”
and “destructive” and said that “[a]ll James O’Keefe is trying to do is hurt institutions[.]” See Valerie
Richardson, Dean Baquet clashes with James O’Keefe of Project Veritas, WASH. TIMES (Oct. 29, 2017),
https://www.washingtontimes.com/news/2017/oct/29/dean-baquet-clashes-with-james-okeefe-of-project-v/. It
seems that Mr. Baquet is most concerned that Project Veritas could harm establishment media institutions
like the Times by exposing their dishonesty and corruption. He was particularly incensed after Project
Veritas exposed a Times employee for admitting to his political bias and mocking the idea of objectivity in
his role at the Times. Id.