By Jonathan Turley, Opinion Contributor, The HILL
“Anyone who isn’t confused really doesn’t understand the situation.” Those words, from CBS icon Edward R. Murrow, came to mind this week after I spoke with journalists at the network.
There is trouble brewing at Black Rock, the headquarters of CBS, after the firing of Catherine Herridge, an acclaimed investigative reporter.
Many of us were shocked after Herridge was included in layoffs this month, but those concerns have increased after CBS officials took the unusual step of seizing her files, computers and records, including information on privileged sources.
The position of CBS has alarmed many, including the union, as an attack on free press principles by one of the nation’s most esteemed press organizations.
I have spoken confidentially with current and former CBS employees who have stated that they could not recall the company ever taking such a step before. One former CBS journalist said that many employees “are confused why [Herridge] was laid off, as one of the correspondents who broke news regularly and did a lot of original reporting.”
That has led to concerns about the source of the pressure. He added that he had never seen a seizure of records from a departing journalist, and that the move had sent a “chilling signal” in the ranks of CBS.
A former CBS manager, who also spoke on condition of anonymity, said that he had “never heard of anything like this.” He attested to the fact that, in past departures, journalists took all of their files and office contents. Indeed, the company would box up everything from cups to post-its for departing reporters. He said the holding of the material was “outrageous” and clearly endangered confidential sources.
Herridge declined to make any public comments on her departure.
CBS also did not respond to my inquiries about this.
A source within the the union, SAG-AFTRA, confirmed that it has raised this controversy with CBS and remains extremely concerned about the effect of this action on journalistic practices and source confidentiality. The union believes this is “very unusual” and goes far beyond this individual case. “It is a matter of principle,” a union spokesperson added. “It is a matter of serious concern. We are considering all of our options.”
For full disclosure, I was under contract twice with CBS as a legal analyst. I cherished my time at the network. I have also known Herridge for years in both legal and journalistic capacities.
CBS is one of the world’s premier news organizations, with a legendary history that includes figures from Murrow to Walter Cronkite to Roger Mudd. That is why the hiring of Herridge was so welcomed by many of us. The network was at risk of becoming part of the journalistic herd, an echo-chamber for Democratic and liberal narratives. It had been mired in third place for ages, and it was moving in the wrong direction by alienating half of the country.
Herridge had been a celebrated investigative reporter at Fox News. An old-school investigative journalist, she is viewed as a hard-driving, middle-of-the-road reporter cut from the same cloth as the network’s legendary figures.
The timing of Herridge’s termination immediately raised suspicions in Washington. She was pursuing stories that were unwelcomed by the Biden White House and many Democratic powerhouses, including the Hur report on Joe Biden’s diminished mental capacity, the Biden corruption scandal and the Hunter Biden laptop. She continued to pursue these stories despite reports of pushback from CBS executives, including CBS News President Ingrid Ciprian-Matthews.
Given the other layoffs and declining revenues, the inclusion of Herridge was defended by the network as a painful but necessary measure. But then something strange happened. The network grabbed Herridge’s notes and files and informed her that it would decide what, if anything, would be turned over to her. The files likely contain confidential material from both her stints at Fox and CBS. Those records, it suggests, are presumptively the property of CBS News.
For many of us who have worked in the media for decades, this action is nothing short of shocking. Journalists are generally allowed to leave with their files. Under the standard contract, including the one at CBS, journalists agree that they will make files available to the network if needed in future litigation. That presupposes that they will retain control of their files. Such files are crucial for reporters, who use past contacts and work in pursuing new stories with other outlets or who cap their careers with personal memoirs.
The heavy-handed approach to the files left many wondering if it was the result of the past reported tension over stories.
Regardless of motive, the company is dead wrong.
These files may contain sources who were given confidentiality by Herridge. The company is suggesting that the privilege of confidentiality (and the material) rest ultimately with CBS. As a threshold matter, that cannot be the case with regard to files that were generated during Herridge’s long stint with Fox News. Yet CBS appears to be retaining those files, too.
When sources accept confidentiality assurances, it is an understanding that rests with the reporter. It is a matter of trust that can take a long time to establish on a personal level between a reporter and a source.
It is certainly understood that the network stands behind that pledge. However, most sources understand that their identity and information will be kept protected by the reporter and only disclosed to a select group of editors or colleagues when necessary. It is the reporter who implicitly promises to go to jail to protect confidentiality — and many have done so. Such agreements are less likely to occur if sources are told that any number of unnamed individuals, including non-journalists, could have access or custody of these files.
When “Deep Throat” agreed to disclose his identity to Bob Woodward and Carl Bernstein, he was assured that they would protect it until his death. He would not have been so inclined if he had been told that this was a type of privilege by committee with potential disclosures to corporate, legal and HR personnel. Reporters like Herridge have long served as the primary defenders of privileged sources. Indeed, Herridge is still in court defending confidentiality over a series of stories at Fox News in 2017, even at the risk of being held in contempt.
CBS is suggesting that it will allow unnamed individuals to rifle through Herridge’s files to determine what will remain with the network and what will be returned to the reporter. That could fundamentally alter how reporters operate and how willing sources are to trust assurances that they will be protected.
In criminal cases involving privileged information, the government has an elaborate “filter team” system to wall off access to information under review. In the court system, judges use in camera and ex parte reviews to protect such information. Ironically, the media itself seems to take a more ad hoc approach. Indeed, CBS seems to have adopted a “Trust us, we’re the media” approach. However, that could expose these files to the access of unnamed lawyers, tech staff and others who are conducting this inventory and analysis.
CBS should reconsider this move before it does real harm to itself or its reporters. Ironically, it should not want to be the custodian of such records, which can expose the company to production demands in litigation, such as the ongoing fight over the confidentiality of the Fox sources. To store such documents is to invite a storm of subpoenas.
CBS could be forcing a showdown with the union, which must protect not only this journalist but all journalists seeking to maintain control and confidentiality of their files.
The union may have no choice but to go to court to force CBS to protect journalistic values, including a demand for an injunction to force the company to secure these files and bar review until a court has had a chance to consider these questions of confidential and proprietary claims to the files.
Famed CBS anchor Walter Cronkite once said “our job is only to hold up the mirror — to tell and show the public what has happened.” It now appears that CBS itself will have to look into that mirror and answer some questions of what happened to the confidential records of Catherine Herridge.
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of public interest law at the George Washington University Law School