Opinion
By Jeff Childers
07-31-24
Good morning, C&C, it’s Wednesday! It’s also the final day of July; tomorrow we head into August, leaving only September and October before the most contentious and momentous election in any of our lifetimes. This morning, we’ll take a short break from our regularly scheduled programming for a rare update on one of my cases since it inadvertently became a news item of its own yesterday: Project Veritas v. O’Keefe and OMG. I don’t think it’s exaggerating to say we may have saved the election yesterday. At least, not exaggerating much. Let me explain.
🗞 C&C MORNING MONOLOGUE 🗞
🪖🪖 Yesterday afternoon, several alert C&C readers quickly sussed out that my legal trip to New York this week was to defend James O’Keefe and O’Keefe Media Group in federal court in the Southern District of New York. The clue was a tweet by James O’Keefe saying that. As you know, I don’t usually comment about my clients or cases here, both for their privacy and to make sure I don’t inadvertently influence the case. (For example, I’d never want a C&C post to be somehow used as an exhibit against my client.)
So I can say a few things, since yesterday Mr. O’Keefe generously and publicly thanked us for helping defeat Project Veritas’s request for an injunction that would have shut down OMG, if it had been granted. I won’t continue this trend, but I will seize this rare opportunity to give you a taste of the flavor of a post-pandemic litigator’s life.
James O’Keefe, just outside the White Plains courthouse after the hearing
The stakes were as high as they get. Among a long laundry list of overreaching demands, Project Veritas had asked the Court to indefinitely forbid OMG from accepting money from anyone who had ever given even a dollar to Project Veritas (even though that unfortunate enterprise is now on life support owing to self-inflicted injuries).
Had it been granted, the injunction Project Veritas requested would have destroyed OMG and sidelined James through the election. I will not speculate on the timing, except to note PV’s lawsuit was filed back in May 2023, but for its own reasons Project Veritas waited a full year to strike in May 2024, only then seeking “emergency” injunctive relief.
You can do the math.
The hearing began promptly at 9:00am on Monday. After a brief skirmish over PV’s failure to serve Mr. O’Keefe properly (multiple mistakes), the smart, efficient judge agreed service was no good but said she would like to hear from him directly anyway, if possible. After I made a hasty hallway call to OMG offices, James voluntarily agreed to drive down to the courthouse and testify, even though he didn’t have to.
An injunctive hearing is like a little trial. Normally, both sides get to put on a case. But PV consumed the entire day with their half-dozen witnesses, including PV board member and former president (after James) Joseph Barton, James’ former executive assistant, PV’s I.T. manager, and OMG’s operations director.
Current Project Veritas president and board member Ben Wetmore, himself a lawyer, was listed as a PV witness but was, inexplicably, a no-show. It was probably a good decision; he escaped a withering cross-examination I took particular pains to prepare.
When instead, former PV president Barton testified, he claimed that James had breached certain provisions of his PV employment agreement, mostly by diverting PV donors to OMG, through telling them to stop giving money to PV. Barton claimed to have many such voice mails on his phone. But under cross, Barton could not name a single donor James allegedly diverted away from PV. Barton also admitted those alleged voice mails, which would have been explosive evidence if true, were not provided as evidence for the hearing.
When asked why not, he said nobody asked him to bring the voice mails.
The diligent Mr. Barton
Barton also admitted that the employment agreement, as worded, would have restricted James from soliciting donations from any former or prospective donor of PV, anywhere in the world, even though James had no realistic way of knowing who PV’s donors were, even though a donation to OMG would not necessarily hurt PV, and even though PV by law does not solicit donors in 35 states and the District of Columbia.
Most incredibly, under cross Barton claimed that, after the board fired James in February of 2023, Barton was not aware of any donor dissatisfaction or any controversy about how James was fired — even claiming that he never read a single news article from major media about James’ firing in papers like the Washington Post or Rolling Stone. Barton insisted, vehemently, that his maniacal focus on his fiduciary duties as a board member left him with no time to keep up with how the donors and media reacted.
I mean, why would he, as PV’s replacement president, care how donors and media were reacting? It was about as credible as if Nancy Pelosi had testified she never looks at her stock portfolio.
Then, after lunch, James took and coolly and credibly answered over two hours of combative questioning, patiently providing context and explanations for a handful of private emails and Telegram messages, presented by PV out of context trying to make James look bad, and which PV incredibly claimed to have ‘recovered’ from James’ left-behind PV electronics.
PV provided most of these private communications and call logs —which they’ve had since James was fired— to my offices for the very first time on the Saturday before the Monday hearing. Just saying.
By the end of the long day, just before a 5pm hard stop (the judge had to attend a conference), PV finally wrapped up its case, leaving no time for us. That meant, if we wanted to put on our own defensive case, the hearing would have to be continued, probably to a date later this Fall, leaving everything in limbo.
So, with James’ full agreement, at 4:45pm we stood up and asked the judge to rule immediately, right then, without even hearing our case, based solely on PV’s failure to prove its own case. It was a calculated risk.
Surprisingly, and encouragingly, the judge immediately agreed to consider that uncommon motion, and asked us all to return to the courthouse the next day at 11am to hear her decision. (Which was why I had to make an emergency Uber run to Brooks Brothers at the White Plains mall to get some clean court clothes. )
The next morning at the 11am hearing, the judge took brief argument from both sides, then delivered a searing 90-minute oral ruling denying PV’s motion for an injunction. She explained in painstaking detail, including an impressive number of legal citations to New York and federal law, why PV’s case was likely to fail on nearly every count in its complaint.
The ruling was too long to summarize here. We must consider the attention capacities of our Portland readers, who would probably doze off. But maybe most importantly, the judge found that James’ employment agreement restricting soliciting PV donors was irredeemably overbroad and therefore unenforceable.
Irredeemable. Kind of like Project Veritas itself.
The ruling drove a stake right into the heart of PV’s vampiric effort to shut OMG down before the election, and went much further, eviscerating the most potentially dangerous parts of PV’s complaint.
Right after yesterday’s hearing, James published his tweet celebrating the win. Usually lawyers tell their clients to keep quiet. To say that kind of tweet makes lawyers nervous does not do it any justice. It’s like watching your client volunteer to test a new flying machine by being the first person to jump off Niagra Falls wearing something that looks like a cross between a deformed umbrella and a whiskey barrel.
But seriously, how can a lawyer hope to stop a media client like James O’Keefe from talking, at least a little?
Project Veritas promptly responded on Twitter/X with a pugnacious tweet arguing that James was the only impediment to resolving the lawsuit —a case that Project Veritas filed. Laughably, Project Veritas could dismiss its own lawsuit anytime it wants, but it hasn’t. So.
As James and OMG’s lawyer, I can tell you with complete confidence that James is not any impediment to resolving the lawsuit. He needs more lawsuits like a hole in the head. Project Veritas’s silly tweeted protests were, in legal terms, poppycock and balderdash. They lacked veracity.
Even bigger media personality Elon Musk responded to James’ victory tweet, asking the obvious question:
Regarding that critical question, I won’t speculate. But ‘far-right’ commenter and celebrated ‘conspiracy theorist’ Alex Jones did:
In its otherwise nonsensical tweet, PV was right about one thing. Even though we’ve stopped them from destroying OMG before the election, which was absolutely critical, the main case continues. We must still defend OMG from PV’s continuing efforts to shut it down. If you are inclined to help, or know someone who is, here is the link to donate to OMG’s legal defense fund, Liberty Guard.
You’ll appreciate, as I did, this inconsequential side fact. I won’t out anyone, but between federal security and courthouse staff, several folks approached us quietly, explaining they were O’Keefe fans and wishing us well at the hearing. They also may or may not have shared their own conspiracy theories and Telegram channel suggestions.
It is, to say the least, an unusual time.
From a personal perspective, James is wicked smart, insightful, and (for a celebrity client) has been a pleasure to work with. He can at times get very distracted, but with good reason. Saying his life is very fast-paced is like saying NASCAR drivers sometimes break the speed limit. He is the rare type of celebrity client who (mostly) follows advice. He is incredibly principled, to a sometimes frightening degree, and a straight shooter. James has a compelling sense of right and wrong that he unapologetically wears like a badge. And he has some of the best lay instincts of any nonlawyer client I’ve worked with.
You can’t win them all, but for the sake of the country we needed to win this one, and we were this time blessed with victory. I should finish by thanking my heroic team, including co-counsel Nick Whitney (who appeared in the heartbreaking Netflix documentary Take Care of Maya), and rest of my team of hardworking legal professionals at Childers HQ who would probably prefer to remain nameless but who worked around the clock and through the weekend perfectly preparing two lawyers for a difficult, remote hearing a thousand miles away.
Whew. This blogger is ready for a rest. But just a little rest, since duty keeps calling and won’t stop, even though we blocked duty’s number several times and put ourselves on the do-not-call list. It didn’t work.
Have a wonderful Wednesday! Get right back here tomorrow for a regular style roundup of essential news seasoned with a soupçon of snark.
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The views expressed in this commentary are those of the author and do not necessarily reflect the official position of Citizens Journal Florida
