Incident Details
- Date of Incident
- November 6, 2021
- Location
- Mamaroneck, New York
- Targets
- James O'Keefe (Project Veritas)
- Case number
- 1:21-mc-00813
- Case Status
- Dismissed
- Type of case
- Civil
- Arrest Status
- Detained and released without being processed
- Arresting Authority
- Federal Bureau of Investigation
- Unnecessary use of force?
- No
Arrest/Criminal Charge
- Equipment Seized
- Status of Seized Equipment
- In custody
- Search Warrant Obtained
- Yes
Equipment Search or Seizure
- Legal Orders
-
-
warrant
for
communications or work product
- Nov. 5, 2021: Pending
- Nov. 6, 2021: Carried out
- Nov. 12, 2021: Objected to
- March 21, 2023: Upheld
- May 2, 2023: Objected to
- Dec. 21, 2023: Upheld
-
warrant
for
communications or work product
- Legal Order Target
- Journalist
- Legal Order Venue
- Federal
Subpoena/Legal Order
![REUTERS/OCTAVIO JONES](https://media.pressfreedomtracker.us/media/images/RTX9U4RY.width-910.jpg)
Project Veritas founder James O'Keefe, speaking here at the Conservative Political Action Conference in early 2021, was detained by FBI agents at his home and his phones seized on Nov. 6.
Court allows government to review Project Veritas founder’s devices seized in raid
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.
On Nov. 6, 2021, FBI agents raided the Mamaroneck, New York, home of conservative group Project Veritas founder James O’Keefe as part of an investigation into the reported theft of a diary belonging to Ashley Biden, President Joe Biden’s daughter, The New York Times reported.
According to a statement published on Project Veritas’ website, the search came two days after raids had taken place at the homes of multiple individuals affiliated with the group, which describes itself as a non-profit 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.
O’Keefe, who did not respond to an emailed request for comment, said in an interview with Fox News’ Sean Hannity that the agents arrived at his home before dawn, placed him in handcuffs, seized two of his iPhones and searched his apartment for more than two hours.
“On my phone were many of my reporter's notes, a lot of my sources unrelated to this story and a lot of confidential information to our news organization,” O’Keefe said. “If they can do this to me, if they can do this to this journalist and raid my home and take my reporter notes, they’ll do it to any journalist.”
In the Fox News interview, Paul Calli, one of the attorneys representing O’Keefe, said the search warrant cited misprision of — or knowingly helping to conceal — a felony, accessory after the fact and transporting materials across state lines as the basis of the warrant.
Calli denied allegations that his client or Project Veritas was involved in the theft of Biden’s diary. O’Keefe confirmed that Project Veritas was approached by individuals claiming to possess the diary in 2020, but said in his 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.”
Trevor Timm, the executive director of Freedom of the Press Foundation, where the U.S. Press Freedom Tracker is housed, wrote on Twitter that the raid of O’Keefe’s home was 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 state and federal law enforcement 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 raid of O’Keefe’s home and the seizure of his phone 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.”
Another O’Keefe attorney, Harmeet Dhillon, told the Tracker that agents had executed the warrant despite O’Keefe’s attorneys having “indicated a willingness to cooperate and provide any information necessary.”
Dhillon tweeted on Nov. 11 that District Court Judge Analisa Torres had ordered that the Department of Justice halt its review of O’Keefe’s phones pending a ruling on their request for a special master — typically a retired judge without ties to the case — to be appointed to oversee the search of the devices.
"We are gratified that the Department of Justice has been ordered to stop extracting and reviewing confidential and privileged information obtained in their raids of our reporters, including legal, donor, and confidential source communications," Dhillon told Fox News.
In a statement released on Nov. 14, Brian Hauss of the American Civil Liberties Union expressed concern for the precedent that could be set by the case and urged the court to appoint a special master.
“Project Veritas has engaged in disgraceful deceptions, and reasonable observers might not consider their activities to be journalism at all,” wrote Hauss, who is a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Nevertheless, the precedent set in this case could have serious consequences for press freedom. Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures.”
As of publication date, the court had not yet ruled on a special master.
The U.S. District Court for the Southern District of New York told the Tracker it does not provide comment on pending cases.
For the purposes of the Tracker, O’Keefe identifies as a journalist, has a track record of publication and said the phones seized by the FBI contained his reporter’s notes. For more about how the Tracker counts incidents, see our frequently asked questions page.
The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].