Conservative Activist Subpoenaed for Unedited Primary Voting Videos

Mar 17, 2016

Investigator Richard Tracy greets James O'Keefe with a subpoena moments after the filmmaker visited the governor's office.
Credit Casey McDermott, NHPR

James O’Keefe, a conservative activist known for his undercover videos in New Hampshire and elsewhere, marched into the State House Thursday afternoon looking to make a point about how the state enforces its voting laws.

He left with a subpoena.

Over the past few weeks, the attorney general’s office had been asking O’Keefe to preserve the raw footage from a series of videos filmed around last month's presidential primary.

The videos — published online through “Project Veritas Action,” a group founded by O'Keefe — claim to show instances of voting fraud and other potential elections violations. One, for example, shows out-of-state voters receiving conflicting guidance at the polls about the state's voter ID requirement.

But instead of handing over the film to the attorney general, O’Keefe opted to hand deliver the footage straight to the governor’s office. The filmmaker said he felt the attorney general was unfairly targeting him, instead of looking into the conduct portrayed in the footage.

O'Keefe asks a gubernatorial staffer to deliver a hard drive, which he says contains videos depicting voter fraud in New Hampshire.
Credit Casey McDermott, NHPR

"We're going to take the extraordinary step today of giving our source material on this drive, which is on this hard drive," O'Keefe said, holding up the drive he planned to deliver, "not to the attorney general who asked in a threatening way to hand it over. But we're actually going to give it to the governor herself."

A few minuted later — flanked by a small film crew, a few supporters and a handful of journalists who trailed him across the street after the press conference where he announced his plans — O’Keefe dropped the hard drive off with a staffer sitting at the front desk inside the governor’s chambers.

“Just deliver the message that she has to actually enforce the laws here in the state, not go after the messenger,” O’Keefe told the staffer.

“Ok, I will pass it along,” the staffer replied.

As soon as O’Keefe exited the governor's office, however, he ran into a state investigator — who, it turns out, was there to hand him a subpoena.

"So you’re subpoenaing me?” O'Keefe asked.

“Yes,” replied the investigator, Richard Tracy.

“Are you subpoenaing the actual people who committed the crimes in the video?” O’Keefe asked.

“That may happen,” Tracy responded. “As of right now, I’m serving you a subpoena.”

Tracy suggested that if the footage requested was on the hard drive the filmmaker just delivered, "that works for us."

O’Keefe continued to pepper the investigator with a few more questions. At one point, he asked, “Do you intend to go after the lawbreakers or just the journalists?”

“I’m just an investigator, sir,” Tracy responded. “So wherever the investigation leads us, that’s the way we’ll go.”

According to O’Keefe, the subpoena ordered him to disclose the unedited footage before a Hillsborough County grand jury in April, or to otherwise release the records to an investigator. 

"That's what I just dropped off," O'Keefe said.

Assistant attorney general Stephen Labonte wouldn't say if there was, in fact, any grand jury investigation related to the videos.

But Labonte says the state had been asking O’Keefe to turn over the unedited footage. 

Until now, according to Labonte, O’Keefe’s team would only offer up the unedited footage with conditions that weren’t conducive to an investigation — stipulating, for example, that the footage couldn’t be shared with a third party or that it had to be viewed on a computer brought to the attorney general’s office.

“The reason why we asked Mr. O’Keefe to preserve the uncut footage is the manner in which the films were originally released online seemed heavily edited,” Labonte said. “We really need to look at the uncut footage to determine really what the conduct is going on by the people portrayed in the footage.

“So we asked them to preserve it, we asked them to voluntarily turn it over,” Labonte added. “Unfortunately, up until today they weren’t willing to turn it over in any way that would be helpful to our investigation.”

The governor’s office passed the hard drive along to the attorney general soon after O’Keefe dropped it off Thursday, according to Labonte. He did not yet have a chance to review the videos at the time he was interviewed Thursday afternoon.