A Democratic Senator Just Demanded A Government Investigation of Journalists For Doing Journalism, and the Media Barely Noticed

Sen. Claire McCaskill / Getty Images
• October 18, 2018 3:01 pm


I was disappointed to read a press release from Missouri Democratic Senator Claire McCaskill calling on her Republican opponent Josh Hawley, also the state's Attorney General, to investigate an undercover sting video of her campaign. In the video from the conservative, pro-Trump Project Veritas, several McCaskill staffers can be seen contradicting the campaign's official platform, while McCaskill herself voices support for Planned Parenthood and a bump stock ban, and opposition to a border wall, politically tricky topics in the red state.

In response, the McCaskill campaign declared the sting not only unethical but illegal. McCaskill campaign manager David Kirby called on Hawley "to uphold his responsibility as Attorney General and appoint a special prosecutor to investigate crimes committed by Project Veritas against the McCaskill campaign." For his part, Project Veritas chief James O'Keefe denies doing anything illegal.

I am not a fan of O'Keefe or Project Veritas. Their videos claim fewer and less important scalps than they once did; look no further than the McCaskill video, featuring damning quotes from only low-level staffers and the actual candidate voicing positions that don't actually contradict her previous statements on the issues. Against the meager value of their journalism we must weigh the long history of unethical and dishonest behavior, including conspiring with a political candidate to plant a fake rape claim in The Washington Post in order to discredit credible accusations. They perpetuate the worst stereotypes about conservative journalists and Byron York's assessment that "O'Keefe really ought to hang it up. Stupidity + maliciousness [is] a bad combination" seems apt.

But this isn't really about James O'Keefe. You're free to think Project Veritas is bad journalism, hackish journalism, unethical journalism, "fake news" journalism, etc. But it is journalism. In this case, it unquestionably led to a disclosure of interest to the public, how a U.S. Senator and her staffers speaks on issues when they believe they are not on camera. And for providing that newsworthy information, McCaskill called for state-enforced retaliation, backed by the threat of prosecution.

Of course journalism isn't a get-out-of-jail-free card, and if Project Vertitas actually committed a crime McCaskill would be within her rights to demand it be investigated. But the argument laid out by the McCaskill campaign is laughable.

The press release states that this is a "clear case of fraudulent activity," that "Josh Hawley is obligated to protect Missourians from fraud," and that he had "knowledge of the fraudulent activity." The campaign specifically demands Hawley "exercise his jurisdiction under the Missouri Merchandising Practices Act—a law he has frequently touted in the past—to investigate the crimes committed by Project Veritas against the McCaskill campaign."

But while Project Veritas may have committed "fraud" in a general sense, lying in and of itself is not a crime. People lie and deceive others all the time without facing the threat of prison time, and there's a long history of undercover journalism. To make it "fraud" in the common legal sense of the word, you usually have to falsely extract something of material value from another person. Any interpretation of "fraud" broad enough to ban the lies Project Veritas told would impact a host of First Amendment-protected activity, whether it's Sacha Baron Cohen hoaxing public officials in disguise or politicians like McCaskill telling untruths.

As for the Missouri Merchandising Practices Act cited by the McCaskill camp, it criminalizes fraud in the context of, uh, merchandising practices. Specifically, it only bans fraud "in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose." I emailed the McCaskill campaign asking how that applies to Project Veritas's activities and got no response. I expect that's because there is no good response; the notion that this ordeal has anything to do with merchandise or trade or commerce is ludicrous.

The media response to a major politician calling for the investigation (and presumably prosecution) of journalists for doing journalism was tepid, to put it politely. There was coverage of McCaskill's demands of course, but missing was the commentary and anger we've seen in past instances in which politicians like Donald Trump or even Bill de Blasio called for retaliation against journalism they don't like.

The lack of media outrage likely stems from how most journalists feel about O'Keefe, his work, and his past behavior. That's understandable. But today it's O'Keefe. Tomorrow it could be an attorney general actually following through and investigating some left-wing or mainstream journalist he's decided is "fake news." The norms that protect O'Keefe protect all journalists, and politicians of any stripe who infringe upon them need to be called out and shamed.