In its lawsuit against the Trump administration, CNN argues that the case is about more than the credentials of Jim Acosta, and that other reporters have reason to worry that their White House passes can be arbitrarily revoked as well.
On Wednesday, during a nearly two-hour hearing in the case, the administration’s lawyers gave ample reason for concerns about access.
The attorney for the government, the Justice Department’s James Burnham, argued that the Trump administration has wide discretion on access to the White House grounds, just as he decides whether to give scoops to a favored outlet, or interviews to some reporters and not others.
Burnham argued that there is not a First Amendment right of access to the White House, and that “if the president wants to clear reporters from the White House grounds, he clearly has the authority to do that.”
U.S. District Judge Timothy Kelly may give some indication on Thursday on how he views that argument. He said that he would rule on Thursday on CNN’s motion to at least temporarily restore Acosta’s White House press credentials. As part of its lawsuit against Trump and members of his administration, the network is seeking emergency relief via a temporary restraining order.
Acosta’s credential was revoked on the evening of Nov. 7, hours after a press conference in which Trump called him “rude” as he tried to ask followup questions when the president wanted to move on to another reporter. A White House intern attempted to grab the microphone from Acosta as he was speaking, but he held on to it, saying, “Pardon me, ma’am.”
Acosta and Sam Feist, CNN’s Washington bureau chief, listened during the hearing from a row near the network’s legal team.
As was clear during the hearing, the Trump administration and CNN have two very different arguments for what should trigger the revocation of a hard pass.
Ted Boutrous, the lead attorney for the network, said that the administration’s lawyer had a “warped” view of the First Amendment. He said that in a 1977 D.C. Circuit decision, having to do with the Secret Service’s denial of a pass to Robert Sherrill, a writer for The Nation, the judges held that when it came to bonafide journalists covering the White House, “access not be denied arbitrarily or for less than compelling reasons.”
“There’s no threat to the president’s safety,” Boutrous told the judge. “There is a threat to the president not being asked a question aggressively by a reporter.”
He said that the White House has shifted its explanations as to why Acosta’s pass was pulled. When it was announced on Wednesday night, Press Secretary Sarah Huckabee Sanders said that it was because Acosta placed his hands on the intern as she attempted to get the microphone. That was contradicted by video of the incident, which shows Acosta’s hand inadvertently touching that of the intern as she tried to get the mic. Sanders also tweeted out video of the incident, but it was slowed in parts and sped up in others to highlight what happened.
Sanders is no longer making that argument, nor is the administration’s legal team. Instead, they are focusing on the claim that Acosta was being disruptive, in that he refused to stop talking at the press conference and would not give up the microphone. While Sanders original statement focused on Acosta’s behavior toward the intern, she did mention that he was “disrespectful” in not giving colleagues “an opportunity to ask a question.”
CNN claims that the credential was not pulled because of the confrontation, but because Trump has long shown animus toward Acosta and the network over the nature of their content. That would be a clear violation of the First Amendment, and Boutrous cited examples before and after the incident where the president has berated other reporters.
At least in his questions, Kelly seemed a bit skeptical that Trump was retaliating against Acosta for reasons of coverage.
“Until this point, he took no action. What triggered a content-based action here?” Kelly asked, noting that the video does show Acosta refusing to cede the floor as Trump tries to go to another reporter for a question.
Boutrous said the raucous atmosphere of the press conference comes from Trump himself, in the way that he cuts off other reporters and chides them. What may have looked like rude behavior under previous administrations is par for the course under this president.
“President Trump establishes the tenor and tone,” he said.
He also noted instances where Trump has talked of revoking credentials, including in a tweet in May, and in speaking to other reporters on Friday, when he said that others may see their passes pulled on the grounds that the presidency and the White House have to be treated with “respect.”
Both sides agreed that the case is unprecedented, in that no one can think of another instance where a reporter’s credentials were pulled in such a high-profile way. Burnham said that as unusual as it is, Trump is under no obligation to follow his predecessors when it comes to the media.
Boutrous, though, said the judges in the Sherrill case recognized that a press pass can’t be denied arbitrarily.
“The president does not have a right to choose who CNN sends to the White House or who it has as its chief White House correspondent,” Boutrous said.
Kelly gave some signals that at this stage of the litigation, he was looking for a way to decide without getting to the merits how far the First Amendment protects journalists’ access to the White House.
The Sherrill case makes it pretty clear that the Secret Service has to follow a procedure of notice and rebuttal in denying of access to the White House grounds. The Trump administration argued that the Sherrill case was narrow and had to do merely with the Secret Service approval, and that it did not address how the White House press office could weigh whether to grant a pass.
On that point, the Trump administration believes that the due process given to Acosta was “more than adequate,” in the words of Burnham, and that it started when Trump called him “rude.” That was fair enough warning that Acosta was out of line.
Boutrous, though, said that such an argument doesn’t make sense because “there has never been a standard” for what constitutes a type of “rude” behavior at a presidential press conference that would warrant the revocation of credentials. Trump, he said, “encourages that kind of rough and tumble discussion.”