Former Project Veritas staffer detained, devices seized

On Nov. 4, 2021, FBI agents raided the Mamaroneck, New York, home of former Project Veritas journalist Eric Cochran as part of an investigation into the reported theft of a diary belonging to Ashley Biden, President Joe Biden’s daughter.

According to a statement published on Project Veritas’ website, the search was one in a series of raids involving individuals affiliated with the conservative group, which describes itself as a nonprofit investigative organization. The group is known for its hidden-camera sting operations that typically target liberal politicians and nonprofits, as well as news organizations including CNN and NPR.

Project Veritas founder James O’Keefe, whose home was among those raided, confirmed in an interview with Fox News that Project Veritas was approached by individuals claiming to possess the diary in 2020, but said in a statement that they had declined to publish its contents and had turned the diary over to law enforcement.

“It appears the Southern District of New York now has journalists in their sights for the supposed ‘crime’ of doing their jobs lawfully and honestly,” O’Keefe said, in reference to the judicial district in Manhattan. “Our efforts were the stuff of responsible, ethical journalism and we are in no doubt that Project Veritas acted properly at each and every step.”

In the early morning of Nov. 4, FBI agents knocked on Cochran’s door; he answered with a recording device in hand, which an agent quickly removed, his attorney recounted in a court filing reviewed by the U.S. Press Freedom Tracker. Cochran was handcuffed and detained for approximately 15 minutes, and agents searched his home for around two-and-a-half hours pursuant to a search warrant issued the previous day. According to the attached receipt for property, agents seized 22 storage devices, two cellphones and three computers, as well as multiple cords and adapters.

Trevor Timm, the executive director of Freedom of the Press Foundation, which operates the Tracker, wrote on Twitter that the raids were concerning.

“This is worrying from a press freedom perspective—unless & until DOJ releases evidence [Project] Veritas was directly involved in the theft,” Timm wrote. “Because if there is none, then the raids could very well be a violation of the Privacy Protection Act.”

The Privacy Protection Act of 1980 states that law enforcement officers cannot search for or seize journalistic work product or documentary materials under claims of probable cause if the alleged offense consists of the receipt, possession, communication or withholding of the materials or the information they contain.

“If you take it as true that they were given this diary by someone unknown to them and they chose not to publish it, this is kind of a classic journalistic situation,” said Jane Kirtley, a University of Minnesota law professor and former executive director of the Reporters Committee for Freedom of the Press. “And what law enforcement should have done is issue a subpoena.”

Kirtley told the Tracker she agreed that regardless of the debates surrounding Project Veritas’ methods, the raids could set a dangerous precedent.

“When we get in the business of government trying to decide when someone is a journalist and when someone isn’t, there’s always a danger that some definitions will be narrow and they will weed out a lot of people who deserve to have journalistic protections,” Kirtley said. “As troublesome as I find Project Veritas’ activities — and again, I do not defend any illegal conduct on their part at all — that is a separate question from whether or not they should be protected by these laws. And if they aren’t then I think all journalists are at risk.”

Attorneys representing Cochran, O’Keefe and a third staffer, Spencer Meads, requested that the court appoint a special master — typically a retired judge without ties to the case — to be appointed to oversee the search of the devices seized from their homes.

“(T)he entire premise of utilizing a search warrant against a journalist to obtain newsgathering materials in connection with investigating the potential theft of property is grossly flawed,” Meads’ attorney Brian Dickerson wrote.

District Court Judge Analisa Torres granted the motion on Dec. 8 and appointed a special master with the authority to review the materials to determine which ones were responsive to the search warrants and to rule on any privilege objections.

In mid-March 2022, according to court records, Microsoft notified Project Veritas that between January and April 2021, it had received a series of search warrants, subpoenas and orders from the government for email records connected to eight Project Veritas journalists, amounting to nearly 200,000 files, along with non-disclosure orders forbidding it from disclosing the demands. Microsoft threatened to file a lawsuit against the Justice Department over the non-disclosure orders, the New York Times reported, at which point the Justice Department lifted the gag orders and Microsoft told Project Veritas about the warrants.

Project Veritas immediately applied to the court for an order forcing the government to stop reviewing the materials it had obtained from Microsoft and disclose who had reviewed the data, what they reviewed and when, arguing that the materials it had seized through the Microsoft warrants went far beyond the scope of the November 2021 search warrants. It does not appear from court records that the court ruled on this request.

Two individuals pleaded guilty in August 2022 to stealing Biden’s diary and selling it to Project Veritas. Federal prosecutors allege that after being approached about the diary, Project Veritas requested that the individuals steal additional belongings. Project Veritas maintains that it “was approached by sources who lawfully provided Ashley Biden’s diary and personal effects, representing that this property had been abandoned.”

In March 2023, the special master reported that about 1,000 documents were responsive to the November 2021 search warrants, only a small portion of which were determined to be potentially protected by attorney-client privilege.

“The Government has established probable cause that the offenses under investigation were committed and that the seized devices contained evidence of that criminal conduct,” the special master wrote.

The sources of the diary had already been identified and one was already cooperating with the government; therefore, the special master said, the typical assumption of confidentiality for communications between reporters and sources was moot. The seized materials were relevant to the government’s criminal investigation and not reasonably available from other sources and therefore were not covered by journalistic privilege.

Project Veritas objected on May 2 to the report. And a month later, Freedom of the Press Foundation co-authored an amicus brief in support of neither party, but asking the court “to affirm that the First Amendment protects a reporter’s right to receive and possess expressive materials of public concern, even if those materials were unlawfully obtained by a third party.”

“It is undisputed that Project Veritas learned about the diary only after it was stolen,” the organizations wrote. “But the Report (perhaps inadvertently) suggests that the First Amendment does not protect Project Veritas’ subsequent receipt and possession of the diary, in addition to any other unlawful activity alleged here.”

“The right to publish newsworthy information is of little use without the concomitant right to possess the information on which publication depends,” the brief argued. “Such a ruling would also undermine decades of precedents recognizing that constitutional protection for newsgathering, an obviously necessary antecedent to publication, is essential for the First Amendment’s Press Clause to have any effect.”

On Dec. 21, the court overruled the objections and ordered that any of the materials not protected by attorney-client privilege on the special master’s list be turned over to investigators. Meads appealed the ruling and all three journalists asked the court to put a halt to the investigation while the appeal was pending; the court refused.

“The Court has already determined that disclosure of the Responsive Materials would not violate the First Amendment,” the judge wrote on Jan. 25, 2024. “The public interests in fairness and journalistic protections have been vindicated by the lengthy and robust process that the parties engaged in before the Special Master and the Court.”

The 2nd U.S. Circuit Court of Appeals affirmed the lower court’s order on July 23, and Meads quickly requested a stay again in order to file a petition for a full panel hearing by the appellate court.

Meanwhile, RCFP had appealed the judge’s order that the search warrant affidavits be kept sealed. On April 16, the court ruled that the search warrant materials should be unsealed once the government’s investigation was finished, whether or not it ultimately brought charges against Cochran, Meads and O’Keefe.

For the purposes of the Tracker, Cochran identifies as a journalist, has a track record of publication and said the devices seized by the FBI contained information from his journalistic investigations as well as confidential source materials. For more about how the Tracker counts incidents, see our frequently asked questions page.