Correspondents Association: Trump Doesn’t Have ‘Absolute Discretion’ on Press Access to White House

CNN journalist Jim Acosta does a
Evan Vucci/AP/REX/Shutterstock

WASHINGTON — The White House Correspondents Association said the Trump administration is wrongly viewing the law when it claims that the president has wide discretion on which journalists get access to the White House.

The WHCA filed an amicus brief on Thursday in CNN’s lawsuit against the administration after its chief White House correspondent, Jim Acosta, saw his credentials revoked following a contentious post-midterm news conference on Nov. 7. A federal judge is set to rule on Friday whether to at least temporarily restore Acosta’s credentials.

“The president’s view of the law is wrong,” the correspondents’ association said in the brief. “While he may have absolute discretion to exclude a member of the press from his Trump Tower residence, he does not have absolute discretion to exclude a member of the press from the White House.”

At a hearing on Wednesday, an attorney for the administration, the Justice Department’s James Burnham, argued that the president has discretion on which media outlets should get entry to the White House grounds. He said there is not a First Amendment right to access to the White House, and “if the president wants to clear reporters from the White House grounds, he clearly has the authority to do that.” He compared it to the president’s discretion to grant interviews to some journalists and not others.

The WHCA’s brief, filed by attorney George Lehner, challenges that assertion. The WHCA claims that a 1977 D.C. Circuit opinion in the case of Sherrill vs. Knight “made clear that, regardless of whether the President has discretion to select those journalists to whom he grants interviews, a journalist’s First Amendment rights are implicated by the denial of a White House press pass and a president therefore is not free to deny press passes as he or she sees fit.”

“As the D.C. Circuit put it, ‘White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons.'”

The WHCA also said if the president “were to have the absolute discretion to strip a correspondent of a hard pass, the chilling effect would be severe and the First Amendment protections afforded journalists to gather and report news on the activities on the president would be largely eviscerated.”

“White House correspondents would have to choose between avoiding reporting or questioning that could upset the President, on the one hand, and risking the loss of a hard pass — a requirement to do their job — on the other hand,” the WHCA said. “Forcing those who cover the President to make such an untenable choice is not something that the First Amendment can tolerate.”

Their brief also says Acosta’s due process rights were violated, particularly in light of the fact that the White House and its lawyers are no longer claiming that he placed his hands on a White House intern as she tried to get a microphone from him. On the night of Nov. 7, White House Press Secretary Sarah Huckabee Sanders tweeted out a video of the incident, but it was altered so that certain parts were slowed and others were sped up.

The Trump administration and its lawyers are now only contending that Acosta was disruptive and, as Trump said at the time, “rude.”

“How can a White House correspondent ‘respond’ to a ‘factual basis’ that changes daily or is supported by an altered video?” the WHCA said in their brief. “And in such a situation, how can a White House correspondent trust that any ‘final written statement of the reasons for denial’ that he or she receives contains the actual reasons for the denial? Indeed, far from dispelling any concerns that the denial of Mr. Acosta’s hard pass was ‘based on arbitrary or less than compelling reasons,’ the supposed process that was provided here — again, a series of shifting explanations — only heightens those concerns.”

U.S. District Judge Timothy Kelly originally said he would deliver a ruling from the bench on Thursday afternoon, but that was delayed to Friday without explanation.

White House officials say that there is a level of decorum that needs to be followed.

“In that particular incident, we weren’t going to tolerate the bad behavior of this one reporter,” Mercedes Schlapp, an adviser to the president, said at a Washington Post Live event on Thursday afternoon. “One of our White House staffers was very shaken up by the incident, and it was one of those things where I think at that point where was action that needed to be taken.”

She said that Trump has been very accessible to the press, and noted that at the Nov. 7 press conference, he took over 65 questions from 35 reporters. She also noted that the president speaks to the press almost daily.

The Post’s Robert Costa asked her whether other reporters are at risk of having their credentials pulled, Schlapp said, “I am not going to get into any internal deliberations that are happening. All I can say is that we want this to be a healthy relationship with the media and the White House. It’s very clear that the way that certain reporters have treated certain members of our staff, and especially with certain lines of questioning it gets difficult, and we are not going to tolerate the bad behavior that we saw with this one particular reporter.”