Judge Blocks White House From Pulling Jim Acosta's Press Pass, But The Battle Continues
from the freedom-of-the-press dept
Update: The White House has officially restored Acosta’s press pass, and also established new rules for press conferences. We’ll bring you more info on those rules after we’ve had a closer look.
Last week I wrote about the case that CNN and its reporter Jim Acosta had filed against the White House for the removal of his press pass over some trumped up claims that he had “assaulted” a White House intern (he did not, he simply resisted returning the microphone to her after she attempted to grab it from him). As we noted, the removal of the pass was clearly based on the content of his questioning and it seemed fairly obvious that the White House would lose the lawsuit, especially based on the existing precedent in Sherrill v. Knight, which gave CNN clear basis under both the 1st Amendment and the 5th Amendment.
Perhaps not surprisingly, a bunch of Trump supporters quickly ran to the comments to screech at me about how wrong and biased I was against them. Let’s be clear: this is bullshit. I would have written the same article had Obama removed the press pass of a Fox News reporter under identical circumstances (and, frankly, the Trump supporters here should learn to think beyond their obsession with defending “dear leader” in everything he does, because the same rules will apply when other Presidents are in charge, and they may not always like it in the other direction). The Constitutional elements here are pretty clear. The White House is allowed to set non-content-based rules for who gets a press pass, but once they do that, they absolutely cannot remove a press pass for anything having to do with content, and they can’t simply make up rules to remove someone without any form of due process.
The judge in this case, Timothy Kelly, (who, we’ll note, was appointed by Trump, even though it shouldn’t make a difference), moved quickly on this case, issuing a temporary restraining order on the White House and ordering it to return Acosta’s press pass Friday afternoon. The basis for his ruling from the bench was the 5th Amendment due process question, noting that there was no clear reason at all given by the White House:
the government must provide Mr. Acosta due process if it is to revoke his hard pass. Accordingly, the likelihood that the plaintiffs succeed on the First — on the Fifth Amendment claim hinges on whether the government provided adequate due process to Mr. Acosta. The court in Sherrill held that this process must include notice, an opportunity to rebut the government’s reasons and a written decision. And all the court — although the court in Sherrill did not have occasion to address it, when an important interest is at stake and when the government is able to provide this process before deprivation, it generally must do so. There is no evidence that one of the few exceptions to this rule would apply here such as some kind of emergency. So I do hold that plaintiffs have demonstrated a likelihood of success on their claim that adequate process was not provided to Mr. Acosta. Indeed, whatever process occurred within the government is still so shrouded in mystery that the Government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta’s press pass — his hard pass.
Now, it is true that the public and Mr. Acosta were eventually provided two things. First, explanations as to why his hard pass was revoked through Ms. Sanders’s tweets; and a written statement of explanation, apparently prompted by this litigation, but given their timing and their lack of connection to Mr. Acosta’s opportunity to rebut — which we’ll talk about in a moment — these belated efforts were hardly sufficient to satisfy due process.
Of course, in typical White House fashion, members of the Trump Administration have continued to trip over each other to make the dumbest statement possible in response to all of this, some of which mean that CNN has already gone back to court in this case, and it’s going to continue. First, White House press secretary Sarah Sanders made the following nonsense statement:
“…the court made clear that there is no absolute First Amendment right to access the White House.”
Except… that’s not what the court said at all. The court actually said that reporters absolutely are protected by the 1st Amendment once they are given a press pass, but that it was premature to rule on the 1st Amendment question when the 5th Amendment procedural question could be dealt with first.
Then the President himself stepped in with more nonsense claiming:
“We want total freedom of the press.”
Uh, no you don’t. You’re constantly whining about the press, threatening them and their revenue sources, or threatening to “pull” some non-existent licenses. And, of course, Trump then went on to misstate what Kelly’s ruling said:
But you have to act with respect when you’re at the White House, and when I see the way some of my people get treated at news conferences, it’s terrible. So we’re setting up a certain standard, which is what the court is requesting.
No, the court is requiring (not requesting) due process, which is not that you get to make up new rules to kick out reporters who are asking you questions you don’t like (or even ones who are grandstanding). And, reporters don’t need to “respect” the President. Indeed, it’s better if they don’t, because their role is to challenge the President and to ask tough questions that no administration likes.
Then, over the weekend, things got even more ridiculous, with the White House telling Acosta they plan to remove his press pass again once the 14 day temporary restraining order is up, and arguing that this is part of their due process to get around the 5th Amendment issues:
After CNN won a temporary restraining order on Friday, forcing the White House to restore his press pass for 14 days, White House officials sent Acosta a letter stating that his pass is set to be suspended again once the restraining order expires.
From the looks of the letter, the W.H. is trying to establish a paper trail that will empower the administration to boot Acosta again at the end of the month.
Of course, as Julian Sanchez points out, telling a reporter ahead of any process that you’ll be removing his press pass would seem to be evidence of your own lack of due process, so this might get rejected on 5th Amendment grounds again (while still avoiding the 1st Amendment questions, which would likely go against the White House as well…).
The letter itself is quite ridiculous. It still says that they’re planning to remove the press pass for his actions back at the November 7th press conference, when the court already made clear that the White House had no legitimate reason to do so based on that conference.
In response to this, CNN has already gone back to court, saying that this retrospective due process is not nearly enough. They ask for a hearing as quickly as possible to deal with the White House making this move.
Either way, this whole fight seems particularly stupid, and one that the White House simply cannot win in any court other than the one of Trump’s super fans insisting that everything the President does must be perfectly correct. It is not. It is unconstitutional. And the sooner Trump’s kneejerk fans recognize that Trump can and does make mistakes, the sooner they can get back to actually respecting the Constitution they now only pretend to support.