Prosecutors or Praetorian Guard: Why is FBI investigating one missing diary in a sea of smash and grabs?

With smash and grabs raging across the country, prosecutors have struggled to assure the public that they are cracking down on the crime wave and using every possible means to deter the organized thefts. One group notably missing in this effort has been the federal prosecutors.

While Attorney General Merrick Garland was criticized for launching a federal task force on threats against school boards (based on a handful of local cases), he has been largely silent on any federal effort to deal with this actual crime wave. That is despite the fact that these attacks are organized on social media and experts think it’s likely the stolen items are being sold on the internet. That is all interstate conduct and would allow for federal enforcement.

There is, however, one allegedly stolen item that did bring a full-scale FBI investigation: the missing diary of Ashley Biden, daughter of President Joe Biden.

The question is why tens of thousands of dollars of purses stolen in cities like Chicago are treated as purely local matters while a single missing diary in Florida is a matter of an ongoing federal effort.

The Justice Department could use laws like the Racketeer Influenced and Corrupt Organization (RICO) Act. Indeed, federal RICO charges have been brought in prior such cases. RICO was created after local prosecutors failed to combat organized crime and the federal government stepped in with new tools to combat mob organizations. I have long preferred that crimes like these smash and grabs to be handled locally. The federalization of crime removes the primary responsibility and accountability of local leaders for crime. That is why I opposed the use of federal charges to combat rioting in cities like Portland.

I am more concerned that for over a year, the FBI has been conducting raids, issuing subpoenas, and questioning witnesses across the country — not in response to smash-and-grabs proliferating around the country, but for one woman’s missing diary. The investigation led to a rare raid on the home of a publisher, seizure of computers and cellphones, and the targeting of conservative figures. According to the New York Times, the investigation is looking into “whether there was a criminal conspiracy among a handful of individuals to steal and publish the diary.”

If that is true, the most obvious federal crime would be a provision like Section 2314 of the National Stolen Property Act, which criminalizes the transportation of illegally obtained goods valued at $5,000 or more across borders in interstate or foreign commerce by persons knowing the goods to be stolen, converted, or taken by fraud. Even assuming that the diary is worth $5000 or more, why would the federal government create a team and take these extraordinary actions rather than rely on local authorities to investigate such a crime?

The controversy over Ashley Biden’s diary began during her father’s campaign for the presidency in 2020. Like her brother Hunter, Ashley has struggled with addiction and was living in a two-bedroom house in Delray Beach, Fla., with a friend. According to the New York Times, she decided to go to Philadelphia but to leave some belongings in two bags in the Delray house. The owner later allowed a friend named Aimee Harris and her two children to move in. The Times strongly suggests that Ms. Harris searched the possessions, noting that she was hard up for money and was also a Trump supporter. The Times then simply says “exactly what happened next remains the subject of the federal investigation.”

The Times details Trump supporters who may have been involved in the diary later being sold to Project Veritas, a conservative organization often criticized for ambush journalism. Project Veritas and its founder, James O’Keefe, maintained that they were given the diary by a “tipster” but decided not to use it. Indeed, the group later turned over the material to law enforcement.

As noted by the New York Times, court records show that on Oct. 12, 2020, O’Keefe told Project Veritas staff that said they would not publish a story about the diary. He explained that, while they had “no doubt the document is real,” he was concerned that publishing the diary would be seen “as a cheap shot.”

Project Veritas continued to try to get President Biden to answer questions based on the diary. The Times quotes Project Veritas’s lawyer as stating “Should we not hear from you by Tuesday, October 20, 2020, we will have no choice but to act unilaterally and reserve the right to disclose that you refused our offer to provide answers to the questions raised by your daughter.”

That notably does not threaten the publication of the diary but rather the publication of the refusal to respond to the controversy. This is not just another Section 2314 case. Publications like the New York Times regularly run material unlawfully removed by whistleblowers or sources. Indeed, in 2019, a federal court dismissed a case against the Trump campaign over the use of material from hacked emails. In an 81-page opinion, U.S. District Judge John Koeltl noted “even if the documents had been provided directly to the Campaign [and] the Campaign defendants … they could have published the documents themselves without liability because they did not participate in the theft and the documents are of public concern.” 

The concern is whether the FBI is acting on a justified federal crime or acting like a type of Praetorian Guard for the First Family. 

This is not a new concern with the Bidens. Federal officers were also used when Hunter Biden’s gun was thrown into a trash bin in Wilmington by Hallie Biden, widow of Hunter’s deceased brother and who was then in a relationship with Hunter. Secret service agents reportedly appeared in the case and asked for the paperwork for the gun from the store where it was purchased. It is still not clear why.

In the end, the removal of the diary was a rotten act of someone with pecuniary or political motives, or both. However, that does not address the equally important questions of the use of the FBI or the need for a federal investigation.

It’s cast into high relief as news outlets around the country run stories on how to avoid buying property stolen in smash and grabs.

As some call for a federal response to the smash-and-grab crime wave, the feds may want to respond as well to questions about its unrelenting focus on who grabbed Ashley Biden’s diary.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.