Project Veritas founder detained, phones seized amid FBI raid of his home

A federal court ruled on Dec. 21, 2023, that the Justice Department could review electronic devices belonging to Project Veritas founder James O’Keefe that the FBI seized at his home in November 2021 as part of an investigation into the theft of a diary belonging to President Joe Biden’s daughter Ashley Biden.

FBI agents handcuffed O’Keefe and searched his Mamaroneck, New York, apartment in 2021, seizing two of his iPhones. The raid came two days after agents detained and seized equipment from two former Project Veritas staffers, Spencer Meads and Eric Cochran. In total, the FBI seized 47 devices during the raids, according to court records reviewed by the U.S. Press Freedom Tracker.

Project Veritas is known for its hidden-camera sting operations that typically target liberal politicians and nonprofits. It describes itself as a non-profit investigative organization.

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.”

After the raid, O’Keefe’s attorneys asked the court to appoint a special master to review the materials the government had seized, arguing that they contained “vast amounts of information protected by the First Amendment, including materials related to on-going news investigations.” A federal case was opened on Nov. 12, 2021, and the government paused its review of O’Keefe’s cellphones. Meads and Cochran soon joined the suit.

O’Keefe’s attorneys also asked the court to force the government to identify officials who they alleged had leaked information about the raid to The New York Times, “which is Project Veritas’s opponent in on-going civil litigation” – a reference to Project Veritas’ still pending defamation suit against the Times. The court denied the request.

Reporters Committee for Freedom of the Press intervened in the suit, asking the court to unseal the affidavits used to support the Justice Department’s applications for search warrants. The court declined, ruling, “RCFP does not have a First Amendment right of access to the Materials.”

On Dec. 8, the court appointed a special master to review the seized materials, stating that “in light of the potential First Amendment concerns,” this process would “protect the public’s confidence in the administration of justice.” It instructed the special master to determine which documents were responsive to the search warrants and then submit them to a governmental filter team, comprising different agents than those investigating Project Veritas, to do their own review for materials subject to “First Amendment concerns, journalistic privileges, and attorney-client privileges.”

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 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.

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 the filter team had determined were 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, which manages the Tracker, submitted an amicus brief co-written with the ACLU and the Foundation for Individual Rights and Expression 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 from Project Veritas and the press freedom organizations and ordered the government’s filter team to turn over any of the materials not protected by attorney-client privilege on the special master’s list. 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.”

On July 23, the 2nd U.S. Circuit Court of Appeals affirmed the lower court’s order, according to news reports.

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 O’Keefe, Meads and Cochran.

O’Keefe was ousted from Project Veritas in February 2023, the Associated Press reported, amid reports of his mistreatment of staff at the organization and “financial malfeasance.”

Editor’s Note: Following the court’s unsealing of the search warrant, the legal order metadata has been updated to more accurately reflect the date of issuance and subsequent objections by O’Keefe.