I “A thing is not necessarily true because a man dies for it.”
― Oscar Wilde
“You know you’re flying over the target when they start shooting at you.”
This is how Project Veritas’ email of June 2, 2017 begins. The statement, presumably in the words of its President, James O’Keefe, announces that Project Veritas, O’Keefe and others are being sued by Democracy Partners, LLC and Robert Creamer for damages in excess of $1 million dollars. The pending lawsuit arises out of a video wherein Creamer was allegedly caught “admitting” to partaking in a scheme to incite violence at Donald Trump campaign rallies in 2016. Moreover, the video depicts how Creamer and an associate, both of whom had worked with the Democratic National Committee, allegedly engaged in “bird-dogging” tactics, a process in which Trump supporters were baited by paid agitators and then the filmed footage was distributed to various media outlets.
Truth is, Creamer and his minions may very well be guilty of participating in such illegal activities. However, Plaintiffs’ guilt or innocence isn’t at-issue here. Rather, the District court lawsuit is premised on the legitimacy of the “final product” videos and whether Project Veritas’ gerrymandered Creamer’s so-called “confession” by selectively editing the footage and use of commentary. Plaintiffs’ burden is to prove its position that “[t]he video was heavily edited and contained commentary by O’Keefe that drew false conclusions from the selectively edited videos…” If successful, the question then becomes one of monetary damages; simply put, whether Democracy Partners can prove that the monetary damages it seeks are justified. How much did it lose in revenue as a proximate result of PV’s actions? And will this loss affect future business opportunities?
The next question is the legality of how this information was obtained. Project Veritas (“PV”) is notorious for its “bend-the-rules” approach. Ethics aside, while the FBI has been known to mimic journalists in the course of seeking information pertaining to a crime, and the CIA’s “Operation Mockingbird” program of using media as a conduit to disseminate what some might refer to as propaganda and has long-standing ties with corporate media entities such as The Washington Post, O’Keefe’s self-declared “guerilla journalist” approach has run afoul of the law in the past.
Although O’Keefe responded to the lawsuit saying, “Robert Creamer believes that by suing us, he can intimidate us. I will not be silenced–only over my dead body!” the dramatic tone of this statement is more akin to a one-time college thespian whose proclivity for theatrics outlasted that of his brief career on-stage than that of a truth-seeking journalist. But drama notwithstanding, O’Keefe clearly can’t see the forest through the trees: Robert Creamer is intimidating PV by filing suit and consequently draining PV of its financial resources (which likely don’t match those of Plaintiffs) in order to defend its case. Alternatively, one can view this lawsuit as a wily legal maneuver wherein Creamer is using the justice system to deflect attention away from any legal culpability on his part, and instead shining a spotlight on PV and exploiting its controversial methods.
Regardless of Creamer’s motives, PV’s questionable credibility will undoubtedly pose hurdles as the case progresses, particularly should the case fail to settle and subsequently proceed to a trial. And for a group that has built its reputation on clandestine operations, the perception of a judge might just have an impact. PV’s overt means of reporting offends some. Judges are human and sometimes personal bias gets in the way of justice. Take the Ninth Circuit’s reaction to President Trump’s travel ban Executive Order where multiple judges opted to disregard statutory and case law, as well as the plenary authority afforded to the executive branch, in order to promote a liberal-leaning agenda. Therefore, facing off against a well-known Democratic group and powerful donors in a judicial setting, PV’s tendency to favor conservative groups could adversely effect it’s case.
O’Keefe’s legal travails of the past are his Achilles’ Heel of sorts, and based on the assertions made in this suit, it appears his ankles are still weakened by an inability to actually learn from his mistakes. And unfortunately for co-Defendant Alison Maass, the journalist who both procured the confidential material and recorded the video at-issue while undercover as an intern for Democracy Partners, her employer’s vulnerability is also hers by proxy. Under the circumstances, simply working for PV, Maass has found herself in a precarious litigation predicament wherein she might be held personally liable if Plaintiffs prevail and judgment is entered against her individually.
PV’s philosophy may seem principled on its face, but in circumstances such as this, such noble motives are farcical unless the organization actually defends its employees’ interests as vicariously as it defends its own.
Yet literally speaking, O’Keefe’s use of “you” in the preface statement cited above is somewhat of a paradoxical misrepresentation. He neither recorded the video himself nor did he lie about his identity in order to gain access to the White House, a federal felony under 18 U.S.C. Section 1001(a) and 18 U.S.C. Section 2. Although Maass didn’t attend, her misreprentation with the intent to gain entry was illegal.
So although O’Keefe might have been in possession of “stolen” (begotten) goods, he was not the thief. Hence, the real target of this suit is Maass being she’s named individually for separate causes of action referred to below. While the message of O’Keefe’s quote doesn’t just appear inherently self-serving, his faulty reasoning as to whom the bullet will actually strike is indicative of a certain ignorance at the expense of others, which specifically are his (PV’s) employees. O’Keefe, as President of PV, possesses his own bullet-proof vest of sorts by possessing the power to hire a legal defense team of his choosing to defend PV and co-Defendants. And if I were in Maass’ situation, I’d be both cautious about and suspicious of whether my interests are equally matched with those of my employers’ given its footing the legal bill and I have no say in the selection process.
While it might seem improbable that a conflict of interest might arise so early on, should it indeed occur, Maass will face a tenuous situation. O’Keefe has no excuse for his illegal activities; he knows better from his past. Yet for Maass, it’s unclear as to whether she was merely heeding her employer’s directive or if she went rogue and opted on her own to break several laws by defying PV’s explicit instructions.
While many are happy to overlook its questionable tactics and praise O’Keefe’s and Project Veritas’ efforts to expose fraud and corruption and the work of his army of “citizen journalists,” such antics have resulted in O’Keefe having been found guilty of attempting to usurp privacy laws when he assumed the identity of telephone repair technician in an effort to gain access to U.S. Senator Mary Landrieu’s office. Then there was the $100,000 settlement O’Keefe had to pay former ACORN employee Juan Carlos Vera after having secretly recorded Vera without his permission and editing video footage to make it appear he and O’Keefe had conspired to smuggle underaged females from Mexico. Notably, Vera even contacted law enforcement after O’Keefe had left ACORN offices.
But less widely known is the degree in which the ACORN video was grossly manipulated. In order to avoid criminal prosecution for breaking California privacy laws which require two-party consent, O’Keefe agreed to release the unedited and complete recordings. As a result, a California Attorney General report found that although the aired version depicted O’Keefe having arrived to the ACORN office in “The Mac”-inspired 1970’s pimp attire. Contrarily, though, actual footage shows he’d introduced himself as a law student and was dressed in a shirt and tie. Further, O’Keefe had never claimed to be a pimp to ACORN employees.
Congress consequently ceased funding to ACORN following the video’s release and the organization eventually filed for bankruptcy shortly thereafter, O’Keefe’s “deception” of having included portions wherein he was dressed in outlandish costume was intended to deliberately mislead the public. And although this particular instance of circulating heavily edited material wasn’t found to be per se illegal, fast-forward to 2017, and the lawsuit that’s the subject of this blog.
Legally speaking, the allegations set forth in the subject complaint against PV and O’Keefe, as well as employees Maass and Daniel Sandini, who served as a liaison to introduce Maass’ undercover “character” to Creamer that led to her having been hired as an intern, might prove rather difficult to defend against. The myriad causes of action being asserted against them include: breach of fiduciary duty, (unlawful) interception of oral communications, trespass, fraudulent misrepresentation—the combination thereof potentially satisfying the elements of civil conspiracy. The purpose of the plan was to intentionally infiltrate Democratic Partners and retrieve information that any reasonable person would conclude was confidential and/or proprietary. O’Keefe et al. will presumably attempt to mitigate their culpability for damages related to knowingly committing fraud, an act which in turn enabled Maass to acquire sensitive information relating to Democratic Partners’ business practices.
Hence, even if the organization isn’t dead to rights legally, PV’s and O’Keefe’s reputations precede them. And in the court of public opinion, while corporate media entities such as The New York Times and The Washington Post publish “news” that’s typically nothing more than biased information packaged to appear newsworthy, PV’s dubious and often aggressive reporting style is offensive to many. And whatever “good” has come from its work, the instances of “bad” are what’s most remarkable and popular amongst the masses.
Notwithstanding PV’s questionable tactics, and O’Keefe’s failure to learn from his personal history of legal mishaps and wrongdoing of recent years, Allison Maass’ position is one I don’t envy. Maass has been individually named under Count One—Breach of Fiduciary Duty and Count Four—Trespass. The former asserts that Defendant Maass breached her duties to Democratic Partners by, inter alia:
- a) “Surreptitiously recording meeting and conversations held in non-public spaces with…members, employees and clients without consent…”’
- b) “Providing these recordings to Project Veritas…”’
- c) “Providing Project Veritas…with documents she obtained during her internship that contained sensitive and confidential business practices and political information without consent…”;
- d) “Removing documents or copies…from the premises without consent or authorization”;
- e) “Publishing said documents and said recordings in print and on the Internet; and
- f) “Using these documents and videos to enrich herself and her employees and/or clients, specifically Project Veritas, in a manner and for purposes adverse to Democracy Partners.”
The above (a)-(f) provide a concise yet comprehensive list of Maass’ acts while interning for Democracy Partners. The operative complaint also posits that she used company computers to access such confidential documentation. Such a “rookie” mistake is reminiscent of O’Keefe’s recent botched sting ploy directed towards Open Society Foundations where unbeknownst to him, he failed to hang up the phone and then proceeded to discuss the sting with another party while the voicemail was still recording. Rule: If you’re going to steal proprietary information, don’t transmit the documents via email to an outside source using company property.
Facing requested relief in excess of $1 million dollars in actual damages, in addition to statutory and punitive damages as permitted for various breaches of federal law and D.C. Code for the greater sum of $100 a day for each violation or $10,000, Maass needs to consider severing her ties with PV, at least in terms of the pending litigation, and make sure her own interests are protected. While O’Keefe might have been her employer and thus she was likely acting solely under his directive, I can’t help but wonder if her contract with PV explicitly provides for indemnification and/or includes a hold harmless clause in the event she’s named in legal action such as this. If so, at what point does an ethical conflict arise should all defendants share the same legal counsel? Since PV (or a wealthy donor on its behalf) will be paying for attorneys’ fees and costs, then where does this leave Maass? Is it plausible that this team of lawyers can zealously represent and yield a favorable outcome for all?
Realistically, in addition to potentially draining PV and the other Defendants of assets in order to pay for the costs of the suit, this lawsuit may result in an even greater victory for Plaintiffs by vindicating Bob Creamer and the other allegedly “guilty” parties who were the subjects of PV’s October video trifecta. As I mentioned previously, whether Plaintiffs conspired to arrange and participate in “bracketing” events designed to incite violence at then-candidate Trump rallies or if Bob Creamer unlawfully accepted a foreign contribution is moot at this point. Every second of footage ascertained illegally by PV will be dissected, as it has been in the past by state Attorney Generals, and the motives of those involved, namely O’Keefe’s, will be scrutinized. But like a poltergeist, the “noisy ghost” of O’Keefe’s indignant arrogance coupled with his journalistic indiscretions of the past, will haunt all Defendants to this litigation.
The adage “Birds of a feather flock together…” seems rather apropos in this situation. While I don’t believe Maass didn’t realize the gravity of her behavior or didn’t have presence of mind to simply put an end to her role as an intern, I do think she was greatly encouraged by PV management to forge ahead given its reputation, damn the possible consequences of facing jail time and being named in lawsuits. That said, Maass’ role herein is arguably that of having been guilty by association; an agent of Project Veritas. Legalities aside, this makes her morally culpable to an extent for her misconduct. But given the inherent nature of the employer-employee relationship where most employees typically fear losing his or her job should they refuse to concede to their employer’s instruction, whether implicitly stated or not, should be considered if Maass is found personal liable for any wrongdoing in which she proximately caused.
Since it’s impossible to change the events of the past, perhaps Maass should ask herself whether risking her physical safety and economic future, as well as potentially facing criminal charges at some later time, was really worth the sacrifice. This situation begs the question: Did the outcome have such a benefit as to justify the bad? Was the degree of deception employed by PV to discover such information really outweigh such revelatory “confessions” that in reality might have been comprised of sliced video footage and words spoken without context?
Is veritas worth the price of being sued, especially when the odds indicate that the “truth” revealed herein was as manipulated as, or perhaps more than, the “truth” according to PV’s arch nemeses, the mainstream media?
Or maybe the purported “truth” in this case was merely representative of the opinions held by those who manage PV.
In consideration of the foregoing, I’d argue that if the end result “truth” is the product of heavily edited material and includes insinuations and conclusions made by those responsible for its production and release, then maybe we should consider the motives of those who choose to manipulate information because the “outcome truth” doesn’t coincide with the “anticipated truth” they were seeking.