FBI won't investigate Politico for Supreme Court leak; raided Project Veritas over leaked diary

Politico on May 2, 2022 published a leaked early draft of the following month's Supreme Court decision overruling Roe v. Wade and returning authority over abortion laws to the states. The FBI has ignored that leak while pressing forward with an investigation into Project Veritas, raiding the home of the organization's founder over the leaked diary of Joe Biden's daughter. 

Dangerous 

The Supreme Court leak was considered a grave infringement on the independent operation of the High Court as it opened the door for individuals to attempt to influence the final (5-4) decision through protests, some outside the homes of conservative justices, and an assassination attempt by a self-described "trans girl".  

Call in the marshall

Liberal Justice Elena Kagan described the leak as “terrible” and “horrible” while Chief Justice John Roberts labeled it as “absolutely appalling". The Hill reported, however, on Roberts' less than optimal path to uncovering the source of that betrayal: 

The misappropriation of intellectual property is a federal crime. So is the obstruction of justice. 

Yet Roberts did not call in the FBI to conduct the investigation. He delegated the task to Gail Curley . . . the court’s marshal. She’s the one who shouts, “Oyez! Oyez! [Hear ye] . . . God save the United States and this honorable court” at the start of every session. 

If Curley has any experience or skill in conducting leaks investigations, her qualifications are less than obvious. [Emphases added].

How it went

Curley has now reported her findings: In short, no one admitted it.

[I]t is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico. No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document. [Emphases added].

George Washington University law professor Jonathan Turley expressed his dissatisfaction with the “chilling” failure to identify the leaker.

Journalists off-limits

Curley explained that she "scrutinized" employees who were in contact with “anyone associated with Politico,” but does not mention any investigation of Politico employees. In her section on interviews, she only mentions interviewing court employees. The Hill explains why:

Directing the inquiry to Politico would obviously be off limits. In our country, we don’t investigate First Amendment organizations over their news gathering activities.

Breitbart similarly reported on the limits of investigating journalistic sources. 

First Amendment jurisprudence has established that news organizations cannot be prosecuted just because they publish materials that may have been obtained illegally — as long as they were not involved in the unlawful process of obtaining them.

Not only did Chief Justice Roberts and Court Marshal Curley decline to invite the FBI to use its authority to investigate Politico directly, they also declined to avail themselves of any FBI resources. The FBI, for its part, did not initiate an investigation of its own volition.

Journalists targeted

In contrast, the FBI raided Project Veritas' headquarters in November 2021 investigating a different leak as reported, ironically, by Politico.

A predawn FBI raid last weekend against Project Veritas founder James O’Keefe and similar raids on some of his associates are prompting alarm from some First Amendment advocates, who contend that prosecutors appear to have run roughshod over Justice Department media policies and a federal law protecting journalists.

Adding to the drama surrounding the brewing court showdown: It stems from a politically sensitive investigation into the alleged theft of the diary of President Joe Biden’s daughter Ashley.

Unlike the leaked Supreme Court decision, the leaked diary did not lead to any murder attempts and did not pressure judges or politicians to change their judicial or policy decisions. And unlike Politico, Project Veritas never published the leaked document instead calling the police to report the leak.

That document made it into the hands of O’Keefe’s organization, Project Veritas, which never published anything on the subject and eventually turned the document over to police.

An ensuing federal investigation resulted in the FBI raid on O’Keefe’s home in Westchester County, N.Y., at 6 a.m. last Saturday to seize his cell phones pursuant to a court order. O’Keefe says he stood handcuffed in his underwear in a hallway as almost a dozen agents — one carrying a battering ram — searched for the phones. [Emphases added].

Selective law enforcement

The FBI has not explained why the diary leak led to a raid while the Supreme Court leak did not. Some have noted the diary contained information that could have damaged the Left by upending Biden's run for president at the time whereas the court leak helped the Left by building pressure against conservative justices

Even as the FBI steers clear of the court leak case, it continues to press its case against O’Keefe, with prosecutors entering a plea deal requiring the two people who found and offered to sell the diary to cooperate with the Justice Department’s investigation into Project Veritas' role in obtaining it.

This despite the fact that, as Politico reported, "the sources (that provided the diary) assured Project Veritas that the diary had been obtained lawfully.” Breitbart maintains that without proof of criminal activity, Project Veritas should not be prosecuted.

The key point of contention in the investigation may turn out to be whether Project Veritas was involved in instigating the theft of the diary, or if it simply obtained the diary independently of the process through which it was unlawfully obtained.

Double standard

Politico quoted First Amendment advocate Trevor Timm of the Freedom of the Press Foundation:

I don’t personally like Project Veritas at all, but imagine this was a liberal org under Trump. Not a good precedent.

Politico emphasized just how differently Project Veritas is being treated.

Over the past six months, Biden and Garland have introduced extraordinarily protective policies toward the press, protections so robust that some national security professionals have raised concerns. However, the fight with Project Veritas raises questions about how broadly the new administration intends to apply those robust protections.

In the words of University of Minnesota law professor Jane Kirtley:

This is just beyond belief. I’m not a big fan of Project Veritas, but this is just over the top. . . .

This is really a test in this administration of whether they’re going to put their money where their mouth is. If they’re trying to be seen as great champions of press freedom, this is a pretty bad way to start.”