Judge Cooper continues fulfilling role, this time unmasking source in FBI investigation of CCP associate

Eliyahu Tulshinski

October 31, 2023

U.S. District Judge Christopher Cooper is threatening Emmy award-winning senior CBS investigative correspondent Catherine Herridge with contempt charges if she continues refusing to identify a confidential source.

The case is being closely watched by journalists and legal scholars as it could narrow the scope of the constitutional protections normally afforded to the press. This would be in line with the stiff sentences Cooper gave to non-violent Jan 6 defendants who were exercising their First Amendment rights in a government building devoid of “no trespassing” signs.

Freedom of the press

Herridge argues that the First Amendment prohibits the courts from forcing her to unmask her sources.

First Amendment

Congress shall make no law . . . abridging the freedom of speech, or of the press . . .

The courts have interpreted this freedom of press clause to be less than absolute, allowing the government to force journalists to publicly identify their sources in some cases.

Balancing test

To determine when a plaintiff is entitled to force the unmasking of a journalist's source, the courts have instituted a balancing mechanism. An investigative reporter's constitutional right to freely operate with confidential sources is weighed against a petitioner's “need” to identify that source.

Courthouse News Service explains that, despite the subjectivity built into the analysis, the general rule is to maintain the confidentiality of sources since many journalistic investigations would not succeed if the sources had to worry about being unmasked:

The legal doctrine generally allows reporters to keep their sources confidential and refuse subpoenas or testifying so that sources can be confident in the promises of anonymity journalists offer and will not be exposed before a court. [Emphasis added].

Strong case

The plaintiff in this case, Yanping Chen, says she needs the name of Herridge's source in order to advance a monetary lawsuit. Her attorneys issued a subpoena attempting to force Herridge to identify her source at a deposition.

Herridge's attorney, Patrick Philbin, argued that the facts of this particular case particularly warrant the application of the “general” rule protecting confidentiality. He noted that the source is not central to Chen's case and that precedent limits unmasking to "extreme cases."

Philbin . . . argued Tuesday that the subpoena is doomed for two reasons: because Chen has not shown that the source information is central to her suit, and that Chen must first exhaust all other methods of finding such information before she can override reporter's privilege. . .

Philbin pointed to the precedent — particularly Lee v. Department of Justice and Zerilli v. Smith — rulings that state that reporter’s privilege “must endure except in extreme cases.” These rulings created guidelines for judges to balance the “public interest in protecting a reporter’s sources and the private interest in compelling disclosure," noted Philbin, who served former President Donald Trump as deputy White House counsel. [Emphases added].

Freedom of press downplayed

Cooper rejected the reasoning of Herridge's lawyer, appearing to set a new standard that unmasking should generally be permitted unless it would pose a major threat to constitutional rights, a threat he considered to be “overstated.”

Cooper seemed reluctant to fully accept Philbin’s characterization of the subpoena as a major threat to the First Amendment protections for journalists, noting that the referenced cases and any similar occurrences are few and far between.

“Isn’t this concern overstated?” the Obama appointee asked, pointing out that the Lee [case cited by Philbin] was from 2005 and Zerilli from 1981. [Emphases added].

Unmask!

Cooper later issued a ruling that Chen's personal “need” to win a lawsuit is sufficient to override the “public interest” in protecting sources.

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.

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.

Cooper thus denied Herridge's request to quash the subpoena compelling her to testify under oath in a deposition.

Refusal

Herridge's deposition went ahead, but when it came to the question of her source's identity she refused to answer. Cooper did not take the defiance of his order lightly, threatening Herridge with contempt in a new order:

"With contempt proceedings now teed up, one of two outcomes appears likely:

Either Herridge will be held in contempt in the near future and can immediately appeal that order, or, as sometimes occurs in these cases, the sources may release Herridge from the privilege rather than watch her undergo the consequences of contempt.

Cooper did not lay out the punishment Herridge could expect if he does hold her in contempt. Punishments have ranged from nominal fines (so called “friendly contempt” orders) to seven month prison sentences.

Alarming, chilling, risky, disturbing

CNN reported on the alarmed reaction of press advocates to Cooper's decision and quoted its own constitutional attorney's opinion that it was "incorrect" and "creates disturbing problems."

Cooper’s decision has alarmed press advocates, who worry that it might set a chilling precedent impacting the entire news media.

“Investigative journalism cannot function without credible assurances of confidentiality to sources,” Gabe Rottman, a director at the Reporters Committee for Freedom of the Press, told me. “While the Privacy Act provides essential protections for the public, using it to breach reporter-source confidentiality poses significant risks to a free press.”

Ted Boutrous, a prominent First Amendment attorney who has represented CNN in previous cases, said he believed Cooper got the decision wrong.

“This is a careful and thoughtful ruling,” Boutrous said, “but in my view it strikes an incorrect balance between the plaintiff’s need for the information and the First Amendment interests at stake and creates disturbing problems for other journalists in the future who are reporting on federal government investigations and important issues of public concern relating to them.” [Emphases added].

The Freedom of the Press Foundation took issue with an additional Cooper decision that Herridge would not be allowed to appeal the contempt until after she receives her punishment.

Journalists are already under great pressure any time they face a legal demand to reveal a confidential source or other newsgathering material. If they can’t appeal an order requiring them to name a source without facing a potentially large fine or long jail sentence, some may think twice about continuing to resist.

Is that why?

Herridge's investigative pieces have surely ruffled feathers in the DC establishment. She has gone after the IRS and even the president's son:

She joined CBS News in November 2019 and has conducted interviews with newsmakers including the IRS whistleblower and case agent in the Hunter Biden probe.

Such investigations might not sit well with Cooper, whose attorney wife represents Lisa Page who, along with paramour Peter Strzok, became the faces of the FBI’s anti-Trump sting operation culture. Cooper himself has not kept kept his politics secret, as he:

told Jan 6 protestors, “enough of this nonsense” and berated them for their political beliefs
told a defendant to go to “different news sites”
applauded illegal protests by political allies
handed out harsh sentences for Free Speech advocates (including AFLDS Founder Dr. Simone Gold and Creative Director John Strand)
handed out light sentences for protestors connected to a Marxist aligned movement

Or is this why?

The last above listed feature of Cooper's courtroom behavior, favoring Marxist aligned parties, may also be related to his treatment of Herridge. Voice of America reports that the confidential source in question provided information about an FBI investigation into the plaintiff, Chen.

In 2017, Catherine Herridge, then a journalist at Fox News, reported that a Chinese American scientist was under investigation by the Federal Bureau of Investigation. . . . [S]he reported that scientist Yanping Chen was the subject of a federal counterintelligence probe.

Chen and her husband ran an online school. In her 2017 exposé of Chen, Herridge laid out the FBI's concerns with Chen's ties to the CCP:

Based just four miles from the Pentagon in northern Virginia is an innocuous-sounding online school for "management and technology" – which a Fox News investigation reveals has been at the center of multiple federal probes about its leadership's alleged ties to the Chinese military and whether thousands of records from U.S. service members were compromised. . . .

Photos, exclusively obtained by Fox News, appear to show Chen as a young officer in the People's Liberation Army, the military wing of China's communist party. Another photo shows Frame saluting his wife, Chen, who is holding a uniform. Three independent experts said it was a Chinese military colonel’s uniform.

Yet since those FBI raids, UMT has continued to collect more than $6 million from Defense Department tuition assistance programs as well as the Department of Veterans Affairs through the post-9/11 GI bill. [Emphases added].

"Stay strong"

Journalist and First Amendment activist Judith Miller, who served a prison sentence to protect the confidentiality of a source, sent Herridge a message of support in her battle with Cooper. She posted, “Stay strong, #CatherineHerridge. As someone who went to jail to protect sources, Herridge's refusal to identify her sources should matter to all journalists and consumers of news.”

See our previous coverage of Judge Cooper and the weaponized DOJ: