Trump’s personal attorney has a history of taking aim at reporters’ anonymous sources

AP Photo/Brian Melley

Charles Harder, a personal attorney for Donald Trump and his family, has sued or subpoenaed reporters on behalf of clients those reporters wrote about.
Harder’s efforts frequently focused on the reporters’ anonymous sources, and sometimes sought information that could be used to identify them.
Donald Trump has denounced journalists who rely on anonymous sources, but refrained from actually suing them while president.
Press freedom advocates are divided over whether Harder’s tactics threaten the First Amendment.

Donald Trump’s clashes with the press have come to define his presidency. He blasts the “fake news media” as an “enemy of the people,” and stages confrontations with individual journalists while threatening libel lawsuits against them. But few incidents have caused more angst and controversy than the president’s repeated attempts to expose the anonymous sources of reporters who cover him. As White House leaks continue to embarrass and hamper Trump’s administration, the odds of a legal showdown are likely to rise.

This possibility is not theoretical. In 2006, Trump sued a New York Times reporter, and sought to identify three of his sources, after that reporter said Trump dramatically exaggerated his wealth. (On Thursday, the Washington Post released a detailed investigation into the same thing.) And, over the past three years, the president has engaged a private attorney, Charles Harder of Beverly Hills, with a history of representing clients who sued or subpoenaed journalists. In court filings, some of those journalists said Harder sought information that could be used to identify their anonymous sources.

This account of Harder’s work for private clients is based on more than a thousand pages of court documents reviewed by INSIDER. They show that, in the past three years, in five different states, Harder has tested a variety of litigation strategies, including defamation lawsuits and subpoenas, against at least four journalists who relied on anonymous sources.

Harder has worked for the Trump family since 2016. He represented First Lady Melania Trump when she sued The Daily Mail over a retracted article that implied she used to work as an “escort,” and advised Trump himself when adult film actress Stormy Daniels sued him for defamation last year. Harder prevailed in both cases. He’s also served as a spokesperson for matters unrelated to Trump’s office, such as his family’s real estate business.

Trump “likes Charles, [and] has a great deal of respect for his toughness and ability,” a White House official told INSIDER.

Harder declined to discuss his work for private clients, but defended his tactics in a statement to INSIDER. “If reporters and their publications would like to avoid lawsuits and depositions, then they should follow the defamation laws and report truthful information in a fair and accurate way,” he said. “Harder LLP would be happy to stop filing defamation lawsuits, if reporters and others would simply follow the law.”

Harder began pursuing information about anonymous sources months before Trump hired him

Harder entered the public spotlight in March 2016, after he won a $141 million judgment against Gawker over a 2012 article that contained descriptions and excerpts of a sex tape depicting the professional wrestler Hulk Hogan. (I worked for Gawker between August 2013 and August 2016, when the site shut down after its parent company filed for bankruptcy as a result of the judgment. I attended the trial in Florida, but was not involved in the case.)

Soon after the Hogan verdict, Harder took on two clients who claimed reporters had used anonymous sources to falsely implicate them in financial fraud.

The first client, a Florida investor named Barry Honig, hired Harder to help him sue the financial journalist Teri Buhl for libel and tortious interference, after she reported SEC investigators had subpoenaed a company in which Honig invested. Harder filed the suit in September 2016, the same month he began representing Melania Trump.

Harder did not target Buhl’s sources directly. Instead, he told a New York judge that his client planned to seek information, through pre-trial discovery, about the basis of Buhl’s reporting and her “journalistic standards, procedures and ethics.” Buhl’s attorney warned the same judge that such a request “may implicate confidential sources of a journalist.”

Honig dismissed the case, without Buhl revealing her sources, in February 2017. But less than a month later, Honig sued her again, and a director of the company Buhl had written about, in North Carolina, where that company has an office. The second lawsuit claimed the director had conspired with Buhl to defame Honig, and was settled out of court in January 2018. Honig didn’t respond to requests for comment.

Eight months later, in September, the SEC charged Honig and nine other individuals with allegations of defrauding investors of $27 million. The relationship between Buhl’s reporting, and the substance of the SEC complaint, is not exactly clear. However, one of the nine other defendants is Robert Ladd, the same director Honig sued in North Carolina. Neither Ladd nor Honig responded to requests for comment.

The second client, an Arizona investor named John J. Hurry, hired Harder in November 2016 for a lawsuit against William Meagher, a journalist for the financial trade publication The Deal. Meagher had written about Hurry’s investment firm and its ongoing battle with the Financial Industry Regulatory Authority (FINRA). Harder sued Meagher in New Hampshire, and served him with a subpoena for Hurry’s separate lawsuit against FINRA in Arizona, where his firm is based.

The Arizona subpoena explicitly targeted information about Meagher’s anonymous sources, by seeking “all writings constituting communications between you, and any source of information related to the plaintiffs” for several stories Meagher published between 2013 and 2014.

The New Hampshire lawsuit, by contrast, did not address the question of who communicated with Meagher. But attorneys for the journalist told the assigned judge that the lawsuit nonetheless belonged to an “opportunistic and retaliatory campaign of litigation gamesmanship” aimed at revealing their client’s sources. They cited an earlier lawsuit Hurry had filed against Meagher, with a different attorney, and abandoned before Meagher was able to respond.

That lawsuit, filed in New York in September 2016, made claims similar to those of the 2016 lawsuit in New Hampshire. One difference: The New York complaint listed “John Does 1-30” as unnamed defendants — a category including “persons who provided false information to The Deal, Meagher and other defendants” — and asserted “the identity of such sources would not be protected by the [New York State] ‘shield’ laws.”

No such language appeared in the New Hampshire lawsuit. Even so, Meagher’s attorneys said that action, in light of the subpoena in Arizona and the aborted lawsuit in New York, was designed to pressure Meagher into coughing up his contacts. “This entire lawsuit is merely a pretext for forcing Defendants to reveal confidential source(s) because that information might prove useful in advancing an entirely separate lawsuit in Arizona,” they wrote.

After the New Hampshire lawsuit failed on procedural grounds — because neither party had any obvious connection to the Granite State — Harder and Hurry decided to appeal to the U.S. Court of Appeals in Boston. In a brief filed there, Meagher’s attorneys accused Hurry and his firm of conducting a “campaign of harassment” against the journalist. In April 2018, a panel of three appellate judges, including the retired Supreme Court Justice David Souter, upheld the lower court’s ruling.

The Arizona subpoena met a similar fate, but for a different reason. A federal judge in California, where Meagher resides, agreed to quash it after Meagher and The Deal argued that it “represents an impermissible intrusion upon Meagher’s right to safeguard the anonymity of his sources.” The Deal and Meagher declined to comment, but the latter recently said on Twitter that the lawsuit exerted a "chilling effect [that] is dangerous to the free press." Hurry didn’t respond to requests for comment.

Harder suing an individual journalist on Trump’s behalf may seem unlikely — but it would be perfectly legal

There is no law in the United States that bars a sitting president from suing a private citizen. “The ability to sue people for wrongs done to you is an important legal right, and people don’t lose it just because they get elected to high office,” said Eugene Volokh, who teaches law at UCLA.

Harder would be constrained by a variety of state-level shield laws designed to protect journalists and their sources. There is no equivalent shield law on the federal level, however, and certain aspects of existing shield laws remain untested.

The Supreme Court has never clarified the form or breadth of any reporter’s privilege; its sole ruling on anonymous sources found reporters can be forced to reveal them to a grand jury in a criminal trial. How the current high court would rule on the same question in a civil lawsuit remains an open question.

Even if Harder’s attempts prove unsuccessful, they send an unmistakable signal to reporters and potential sources about what they could face in a suit involving Harder.

“Suing for defamation and aggressively pursuing discovery of confidential sources can certainly be used preemptively to chill both the sources providing information to reporters and further reporting on their allegations,” said Lyrissa Lidsky, a First Amendment scholar and the dean of the University of Missouri School of Law.

Harder continues to test new tactics

Two recent cases suggest Harder may remain interested in pursuing the identities anonymous sources. In February 2018, Harder petitioned a New York judge for permission to depose Mark Maurer, a former reporter for the real estate trade publication The Real Deal, over his coverage of Harder’s client, Yoron Cohen. The real estate businessman had accused his former employer of leaking false information about his job performance to Maurer.

While Harder didn’t explicitly request the names of Maurer’s sources, attorneys for the journalist argued that his proposed questions, which focused on how Maurer characterized his sources, nonetheless pertained to privileged information about his reporting methods (which could, in turn, be used to identify his sources). The court sided with Maurer, and Cohen and his former employer later settled out of court. Both The Real Deal and Maurer declined to comment. Cohen didn’t respond to requests for comment.

In the most recent case, from April 2018, Harder subpoenaed Danny Fortson, a reporter for The Sunday Times who is based in San Francisco, for documents and testimony concerning Fortson’s coverage of a legal dispute, currently unfolding in the United Kingdom, between a British mining company and its former law firm.

The subpoena, approved by a California judge, sought to confirm the law firm had provided Fortson with a confidential letter intended for the mining company. Fortson refused to comply, citing the First Amendment’s reporters’ privilege and shield laws in California, the United States, and the United Kingdom. Harder has not yet filed a response, and Fortson and The Sunday Times declined to comment.

Harder’s tactics pose a dilemma to First Amendment advocates, who may be reluctant to criticize a legal system that tends to favor press freedom

“Representing people in cases that, overall, are bad for society or bad for the First Amendment landscape as a whole, isn’t unethical as a legal matter,” said Katie Townsend, the legal director of the Reporters Committee for Freedom of the Press. “Do I agree with what Charles Harder does? No. Would I want to do that kind of work? Absolutely not. But I can’t say that he’s doing anything, as a lawyer, that’s improper.”

Jasmine McNealy, a media law professor at the University of Florida, highlighted the tension between the media’s interest in protecting sources and the legal profession’s advocacy for their clientele.

“There are very real reasons that a journalist would want to keep their sources confidential,” she told INSIDER. “Sources help to make the news, and in some cases, without the information sources provide, important stories would never have become public.” She allowed, however, that “a good attorney will try whatever they can to get information that will assist them in winning the case for their client.”

Buhl, whom the attorney sued twice, believes Harder “is encouraging clients to use litigation as a tactic to discourage other whistleblowers from coming forward out of fear the court will force a journalist to reveal sources.”

“I think it’s clear he has no respect for a free press,” she added.

It remains to be seen whether Harder will file a lawsuit against a reporter covering his most famous client. Filing such a claim would commit the president to a legal process he may not win. It would also instigate yet another dramatic confrontation between the White House and the media, and broach fundamental questions about where press freedom begins and ends.

In the meantime, the president’s attorney remains undeterred. “Reporters are required by law (and should be required) to answer questions about their motives,” he told INSIDER. In the same statement, he asked: “Do you believe that all defamation laws should be stricken from the books, and people should be allowed to say anything at all they want about others, no matter how false and harmful, with no repercussions whatsoever?”