Is Catherine Herridge The New Daniel Ellsberg?
Didn't see that one coming.
Catherine Herridge (Photo by Shedrick Pelt/Getty Images)
There’s a First Amendment lawsuit making its way through the federal court system in DC which could have major implications for press freedom in this country. And in a wild turn of events, Fox News is the one standing up for the principles of journalistic integrity.
The case, which was flagged by CNN’s Oliver Darcy in his Reliable Sources newsletter, was brought by Dr. Yanping Chen, a scientist who emigrated from China in 1987 and has been a naturalized US citizen for more than 20 years. In 2010, Chen was investigated by the FBI, who suspected that she’d lied on her immigration forms about her work on the Chinese space program. In 2016, the FBI informed Chen that she was in the clear, but in 2017, reporter Catherine Herridge, then of Fox News, published a series of stories about Chen and the FBI’s decision not to charge her.
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Herridge’s stories broadcast evidence seized by the FBI when it executed warrants on Dr. Chen’s home and workplace, including photographs and interviews with Dr. Chen’s child. Some of the images were from an FBI agent’s PowerPoint presentation turned over later in discovery, while others bore FBI evidence marking numbers.
In 2018, Dr. Chen sued the Justice Department, as well as the Departments of Defense and Homeland Security for violating the Privacy Act by leaking information about the investigation to Fox and Herridge. After three years of discovery in which she failed to discover the identity of the leaker, Dr. Chen subpoenaed Fox and Herridge, who had by then decamped for CBS.
The reporter and her former bosses fought the subpoena and lost, with Judge Chris Cooper ordering Herridge to testify in an August 1, 2023 ruling.
“The Court recognizes both the vital importance of a free press and the critical role that confidential sources play in the work of investigative journalists like Herridge,” he wrote. “But applying the binding case law of this Circuit, the Court concludes that Chen’s need for the requested evidence overcomes Herridge’s qualified First Amendment privilege in this case.”
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Herridge requested that Judge Cooper certify an interlocutory appeal and stay his order for her to testify. But the judge refused, noting that a non-party must first violate a subpoena and be held in contempt before accessing appellate review in the DC Circuit. So Herridge had to show up for her deposition on September 26 and refuse to answer questions posed by Dr. Chen’s lawyers from Wilmer Hale [UPDATE: The deposition was actually conducted by Andy Phillips of Meier Watkins Phillips Pusch LLP]
(In a footnote, Judge Cooper threw serious shade at the Fifth Circuit, which “recently deviated from this standard practice” in a 2018 abortion case by “permitting the Texas Conference of Catholic Bishops to proceed with an interlocutory appeal of a discovery order because the First Amendment interests at stake were ‘sui generis.’” TLDR: Jones, Costa, and Ho.)
Dr. Chen has now moved for contempt, requesting “a continuing, coercive financial sanction, payable to the Court, to compel Herridge to comply with the Order.” She further requests that Herridge be personally liable for any penalty, rather than allowing her draw on Fox’s virtually bottomless resources.
“Herridge’s exhaustive efforts to date to avoid compliance with the deposition subpoena and Order have almost certainly been bankrolled by her former employer, Fox News, with whom she shares the same counsel,” Chen writes. “If Herridge were permitted to have Fox News or any other third-party payor(s) cover the costs of any sanctions imposed, then the coercive impact of those sanctions will be greatly hindered.”
Indeed, Chen describes Herridge as having engaged in deliberate spoliation of evidence, particularly in light of her awareness that the case was ongoing for two years before she was personally subpoenaed:
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Finally, during her deposition, Herridge also admitted to taking active steps to destroy documents that are highly relevant to Dr. Chen’s claims. Herridge admitted that she did a “clear out” of her hard-copy files and materials “earlier this year,” including “materials pertaining to Dr. Chen.” That would have been many months after Herridge received subpoenas for documents and testimony in this case in June 2022. After her counsel abruptly called for a break in the deposition and spoke with Herridge off the record, she then returned and changed her testimony to say that she was “confused about the timing” and insisted that she actually destroyed her records relating to Dr. Chen early in 2022, “prior to the subpoena.”
And so, for the second time this year, Fox News finds itself at the center of a major First Amendment press freedom case even as its hosts deride the mainstream media and and “liberal” values it represents.
Wild times!
Chen v. FBI [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
