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Kyle Cheney and Josh Gerstein

Fox News, backed by Trump White House lawyer, fights subpoena in leak lawsuit

Catherine Herridge’s reporting included “snippets of her immigration forms, a summary of an FBI interview with her daughter, and personal photographs of her and her husband,” according to U.S. District Court Judge Christopher Cooper. | Shedrick Pelt/Getty Images

A former Fox News reporter is fighting in court to scuttle a subpoena demanding that she reveal the source behind a series of stories that aired confidential details of a counterintelligence probe into a Chinese American scientist.

That scientist, Yanping Chen, is suing the FBI for damages, claiming that the leaked information was part of a campaign to damage her after federal prosecutors ended their six-year investigation of her without bringing charges. Chen, who operated a graduate education program based in Arlington, Virginia, also subpoenaed Fox and Catherine Herridge, now of CBS — to force her to disclose the source of several 2017 stories.

Notably, Fox News and Herridge are being represented by Patrick Philbin, a former top lawyer from Donald Trump’s White House. Philbin, who decried media leaks during Trump’s first impeachment trial, appeared in court Tuesday to help Herridge fend off the effort to expose her source.

The FBI initially suspected that Chen had lied on immigration forms about her work on the Chinese space program, and she was the subject of two search warrants and seizures of her devices. But she was informed in 2016 that she would not be charged with any wrongdoing.

Within a year, Herridge was reporting on key aspects of the probe, as well as on the divisions within the government about the decision not to charge Chen. Chen says the reports were followed by a sharp drop in enrollment and funding for her graduate program.

Herridge’s reporting included “snippets of her immigration forms, a summary of an FBI interview with her daughter, and personal photographs of her and her husband,” according to U.S. District Court Judge Christopher Cooper.

Chen sued the FBI, DOJ, Pentagon and Department of Homeland Security in 2018 seeking damages, an admission of wrongdoing from the government and prosecutions of any violations of the Privacy Act that may apply to her case. But after dozens of depositions failed to unmask the potential leaker, Chen turned her sights to Fox News and Herridge, which Chen’s attorneys say is a last resort.

The lawsuit has steadily advanced for five years despite generating little attention. Yet it represents the collision of a wide range of Washington interests and issues, carrying implications for how journalists’ First Amendment protections are balanced against the need to prevent leaks of sensitive government information that implicates privacy rights. Cooper noted in court Tuesday that while Congress passed the Privacy Act almost five decades ago, lawmakers have “not seen fit to pass a reporters’ shield law.”

“For better or worse,” the judge added.

Philbin, who works in the Washington office of the firm helmed by former White House counsel Pat Cipollone, sought to conduct Tuesday’s proceedings under seal, a nod to the voluminous details about the case that have been redacted from public view and the potential implications for the FBI’s counterintelligence operations. But Cooper declined, at first, to close the hearing to the public, instead urging Philbin to make broader legal arguments without delving into the sensitive details of the case. Cooper later sealed the hearing to permit the parties to delve into the sensitive details of the case.

During the public portion of the hearing, Philbin contended that Chen had failed to pursue all possible leads about the source of the leak before turning to a subpoena for Herridge. Chen’s inquiry centers around the existence of a PowerPoint document that contained details of the FBI’s probe that later wound up on Fox. Philbin said that while Chen narrowed down potential sources of the leak who “possessed” the PowerPoint to a handful of officials, she omitted a much larger number of people who had “access” to the file. That includes a counterintelligence “squad” of eight to 12 people who worked in an office where the PowerPoint was stored on a CD, he said.

Philbin’s comments prompted Justice Department senior litigation counsel Carol Federighi to interject, warning that he appeared to be veering into subjects meant to be kept from public view. Federighi intervened a second time when Philbin began to describe some binders that included pictures similar to information contained in the PowerPoint.

While journalists have won considerable protection in state courts and enjoy near-immunity from subpoenas by prosecutors in federal criminal cases due to DOJ regulations adopted by Attorney General Merrick Garland, Privacy Act lawsuits remain treacherous for members of the press.

In 2008, a judge handling a Privacy Act lawsuit brought by former government scientist Steven Hatfill ordered former USA Today reporter Toni Locy to pay escalating fines of up to $5,000 a day and attorneys’ fees for defying an order to identify her sources for stories about a federal investigation into Hatfill’s potential ties to deadly anthrax attacks in 2001.

Locy said she could not recall which sources provided specific information about Hatfill, but a judge rejected that.

While Locy’s appeal of that contempt order was pending, the U.S. government settled with Hatfill for $5.8 million, mooting the contempt fight.

Shortly after the settlement, the Justice Department informed Hatfill’s attorneys that investigators had ultimately concluded that Hatfill was not involved in the anthrax mailings.

Chen’s effort to seek damages comes just three months after the Biden administration shut down a China-focused anti-espionage program, known as the China Initiative, claiming it had created a false perception about Chinese Americans and U.S. residents from China.

Philbin has been a figure of intense interest in recent years for his presence in the White House during the crucial chaotic weeks at the end of Trump’s term, when Trump attempted to subvert the 2020 election and rebuffed calls to calm his supporters for hours as violence raged at the Capitol on Jan. 6, 2021. Philbin has interviewed twice with prosecutors now working for special counsel Jack Smith. But he’s also been seen entering the federal courthouse for various civil matters that he and his firm are involved in.

Philbin had a harsh assessment about media leaks during Trump’s 2020 impeachment trial on charges that he abused his power and obstructed Congress over allegations that he pressured Ukraine’s president to launch a criminal probe of Joe Biden. At the time, Philbin assailed congressional Democrats for what he said was animus toward Trump, exemplified by leaks from closed-door depositions.

“The testimony that took place was selectively leaked to a compliant media to establish a false narrative about the president. If that sort of conduct had occurred in a real grand jury, that would have been a criminal violation.”

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