A longtime journalist could soon be held in contempt of court in a civil case in Washington, D.C., after she refused to reveal the source of stories she reported several years ago about an FBI counterintelligence investigation into a Chinese-American scientist’s ties to the Chinese military.
CBS senior investigative correspondent Catherine Herridge, who worked at Fox News when she did the reporting in question, could face steep daily monetary sanctions designed to force her to disclose her source if the U.S. district court in Washington, D.C., finds her in civil contempt.
The plaintiff in the case, Yanping Chen, is asking that Herridge pay a “continuing, coercive” sanction of up to about $5,000 per day and pay Chen compensation for the entirety of her legal fees, according to an application Chen filed this month.
Claiming Herridge was “almost certainly” being “bankrolled” by Fox News, Chen also asked that Herridge pay the penalties herself, without any third-party assistance.
“Without an effective sanction intended to coerce Herridge’s compliance with the Order, there is every reason to believe that she will simply persist in her defiance,” Chen’s attorney wrote in the filing.
Originally from China, Chen moved to the U.S. more than 30 years ago and gained citizenship in 2001. She founded an online technology school in Northern Virginia that catered to government workers, and Herridge’s reporting centered largely around the FBI’s inquiry into Chen and the school.
This week, U.S. District Judge Christopher Cooper ordered Herridge to submit a written argument by Dec. 14 laying out why she should not be held in contempt and penalized in accordance with Chen’s request.
Herridge is being represented by attorney Pat Philbin, who served as deputy White House counsel during the Trump administration.
The case began five years ago, when Chen sued the FBI and Departments of Justice, Defense, and Homeland Security, accusing them of gathering personal details about her during the FBI’s investigation into her and the school, and then leaking the confidential information “to smear her reputation and damage her livelihood” in violation of the Privacy Act, according to her initial complaint filed in 2018.
The FBI’s investigation of Chen spanned years, and shortly after the DOJ decided against prosecuting her, Fox News, and primarily Herridge, issued a series of exclusive reports in 2017 about the investigation that included family photos seized during an FBI search of Chen’s home, as well as private details about her immigration records and an FBI interview with her daughter.
After unsuccessful attempts to pin down with certainty who in the government leaked her personal information, Chen resorted to subpoenaing Herridge and a judge ordered that Herridge comply with the subpoena, which involved the veteran journalist unmasking her source in a deposition.
On the day of her deposition, Sept. 26, Herridge “flatly refused to testify regarding the identity or intent of the source or sources that provided Dr. Chen’s protected records to her,” according to Chen’s most recent court filing.
Herridge said during the deposition that she had “complete respect for the court and its authority and for the order,” according to the filing.
“I have no desire to defy a court order, but my understanding is that the courts have ruled that in order to seek further judicial review, I must now disobey the order, and for that reason, among others, I am invoking my First Amendment rights and declining to answer the question,” Herridge said, per the filing.
In other words, Herridge cannot file an appeal in the case until Cooper issues a ruling on contempt, which he is not expected to do any sooner than late December.
The case has raised alarm among press freedom advocates, who have been urging Congress to pass stronger protections for journalists and their sources so that the sources feel less fearful about their identities being uncovered.
“The Herridge case starkly highlights the need for Congress to pass a federal shield law that would protect journalists from being forced to identify their confidential sources,” Gabe Rottman, a project director with the Reporters Committee for Freedom of the Press, told the Washington Examiner.
Rottman said, “Those protections are essential for the free flow of information to the public, because if sources can’t be assured confidentiality, they won’t come forward.”
Chen, for her part, argued in her most recent court filing that she has exhausted all other options to identify the leaker in her case, including years of legal motions and numerous depositions with the government entities she is suing, and that she therefore has overcome Herridge’s First Amendment privilege.
In seeking a guideline for suggested sanctions against Herridge, Chen cited Hatfill v. Mukasey, a similar case in which a USA Today journalist was charged in 2008 with contempt and sanctioned from $500 to $5,000 per day for refusing to reveal a source.
The contempt order was, however, dropped in the case after plaintiff Steven Hatfill, who was wrongly connected to the 2001 anthrax attacks, settled his Privacy Act claim with the government for $5.8 million.