Trump Administration Threatens Again To Revoke Jim Acosta’s Press Pass

Despite a court ruling that says otherwise, the Trump White House appears prepared to once again revoke the press pass of CNN reporter Jim Acosta.

Just days after suffering a legal setback in Federal District Court, the Trump Administration appears ready to tempt fate again in its ongoing, irrational, and vindictive war against the media by announcing earlier today that it intends to once again revoke the press credentials of CNN White House Correspondent Jim Acosta when the Temporary Restraining Order that was entered last week expires:

The White House told CNN correspondent Jim Acosta it still plans to revoke his security credentials, CNN said Monday, showing the Trump administration is not backing down in its battle with the network.

A judge temporarily restored Acosta’s White House security pass on Friday. But in a letter to the network, press secretary Sarah Huckabee Sanders and deputy chief of staff for communications Bill Shine said they still intend to suspend Acosta’s White House pass when the judge’s order expires.

CNN’s outside counsel Ted Boutrous on Monday asked the court for an emergency hearing the week after Thanksgiving in hopes the judge would reinstate Acosta’s “hard pass” — the security badge that lets White House reporters freely enter and exit the grounds — for a longer period of time while the lawsuit moves forward. The letter from the White House was included in court documents filed Monday.

“The @WhiteHouse is continuing to violate the First and Fifth amendments of the Constitution,” CNN said in a statement posted to Twitter Monday. “These actions threaten all journalists and news organizations. @Acosta and CNN will continue to report the news about the White House and @realDonaldTrump.”

Acosta had his press credentials suspended following a fiery exchange with President Donald Trump in a news conference on Nov. 7, during which he resisted when a White House intern attempted to take a microphone out of his hands. The White House initially claimed, using an apparently altered video as evidence, that he inappropriately touched the intern. Officials later changed their rationale to say that Acosta had breached unwritten standards of decorum for the press.

Buzzfeed’s Zoe Tillman has more:

The Trump administration is planning to once again take away CNN chief White House correspondent Jim Acosta’s credentials, a sign that the administration is digging in for a fight after a federal judge last week ordered Acosta’s hard pass temporarily reinstated.

US District Judge Timothy Kelly on Friday granted CNN’s request for a temporary restraining order while the network’s lawsuit goes forward, finding that the White House likely violated Acosta’s constitutional right to due process in how it took away his pass. Later that evening, the White House sent Acosta a letter saying they had made the “preliminary decision” to suspend his hard pass, according to a copy included in court papers filed by CNN on Monday morning.

The White House gave Acosta until Sunday at 5 p.m. to respond, and said that after that point, the decision would become final, meaning he would lose his hard pass again once the White House was no longer bound by court order.

Given the latest communication from the White House, CNN is asking Kelly to speed up the schedule for the next phase of the case, which involves the network’s request for a preliminary injunction, which would be a more permanent form of relief — and an order that the White House could appeal if it wanted to escalate the fight.

Acosta’s hard pass was revoked Nov. 7 after he refused to give up the microphone during a White House press conference with Trump. Acosta was trying to ask the president about the Russia investigation, and a White House intern went up to Acosta to take the microphone and move on to another reporter. Acosta wouldn’t sit down, however, and briefly made contact with the intern’s arm as he tried to dodge her efforts to take the microphone from him.

The White House initially cited Acosta’s physical contact with the intern as one of the main reasons they were taking away his credentials, but later shifted to more broadly accusing Acosta of disrupting the press conference. In the Nov. 16 letter to Acosta, deputy chief of staff for communications Bill Shine and press secretary Sarah Huckabee Sanders wrote that there were no written guidelines for press behavior at press conferences because there had been a “widely shared understanding” that reporters would ask a single question unless a follow-up was allowed, and would yield the floor after the question was answered.

“On November 7, 2018, you failed to abide by these basic, widely understood practices,” Shine and Sanders wrote to Acosta.

CNN’s lawyers responded to the White House’s letter on Sunday afternoon. Ted Boutrous, who argued for CNN last week, wrote to the Justice Department lawyers handling the case that, “To say the least, the letter is a disappointing response to the court’s decision and our attempts to resolve the matter amicably.”

In a letter to Shine and Sanders, Boutrous wrote that the “ex post facto application of vague, unarticulated standards” was the same type of due process violation that led to Kelly’s order last week.

CNN’s lawsuit accuses the White House of violating Acosta’s First Amendment rights, his Fifth Amendment right to due process, and the Administrative Procedure Act’s prohibition against “arbitrary” and “capricious” actions by a federal agency. In Friday’s decision on the temporary restraining order, Kelly found that there was no absolute First Amendment right for reporters to access the White House, but that once the White House started letting reporters in, First Amendment interests kicked in.

As a legal matter, there is some logic to the White House’s position. The Temporary Restraining Order that Judge Kelly entered last week is set to expire fourteen (14) days after it was entered, which is generally the time limit set for TRO’s in Federal Court. The typical procedure in the meantime would ordinarily be that the parties would file further pleadings in Court on the issue of whether or not the TRO should be converted into an injunction that would prevent the White House from revoking Acosta’s credentials while the case is pending, at least with regard to any alleged behavior that occurred prior to the hearing. Instead of proceeding in that manner, though, the White House appears to be taking the position that it can simply wait until the TRO has expired and, presuming that it has not yet been converted into a preliminary injunction, then revoke the hard pass yet again even if there is no new basis upon which to base such a decision.

Additionally, as I noted in my post on the subject last week, Judge Kelly based his decision on essentially two provisions of the Constitution. To begin with, while he left for another day the First Amendment/Freedom Of The Press issues raised by the White House’s actions he did find that there are First Amendment issues at stake here. Specifically, he found that while there is not necessarily a First Amendment right for a reporter to be granted access to the White House, once the White House began doing so it created a First Amendment issue that means, among other things, that such access cannot be denied in an arbitrary and capricious manner. In this respect, Kelly relied upon a 1977 case that stands for the proposition that the granting or revocation of a White House press pass raises issues under the Due Process Clause of the Fifth Amendment, meaning that the decision to grant or revoke a press pass must be accompanied by some semblance of due process, which includes not only an opportunity for the reporter in question to be made aware of the basis for the decision and be heard in rebuttal of the accusations against him but also the existence of clear pre-existing rules and procedures that would allow reporters to be aware of what is expected of them and the circumstances under which they could lose access to the White House. It would also appear to mean that those rules, once they are established (which has not happened yet), cannot be applied retroactively. This would mean, at the very least, that the White House could not draft rules today and apply them to something Acosta or any other reporter is accused of doing two weeks ago.

Understandably, CNN and Acosta are not taking this latest threat from the White House lying down. They have filed a motion with Judge Kelly asking for an emergency hearing on the matter early next week (the Court is unlikely to have time to schedule anything before the Thanksgiving break, which effectively begins on Wednesday) to bring this matter before the Court. At that point, the question will be whether Judge Kelly will either extend the length of the TRO to some point further out to allow the parties time to fully address the issue of granting a more permanent preliminary injunction or to simply go ahead and grant the preliminary injunction on the spot.

Whatever may happen at that hearing next week, this move by the White House does not strike me as very smart. Rather than accepting that and moving to the preliminary injunction phase of the proceedings, the Administration appears intent on pretending as if last week’s rulings never really happened and that they are free to act as they wish notwithstanding what the Judge may say. While that would effectively be true if the T.R.O. expires before the Court can rule on a preliminary injunction request can be ruled on, the spirit of Judge Kelly’s decision, and the message that it should have sent to the Administration is clear. You can’t simply revoke someone’s press pass without due process, and it’s clear that there is no due process in this case. Judge Kelly may be new to the bench and, ironically enough, a Trump appointee, but in my experience, this is the kind of game playing by a party that tends to annoy Judges and cause them to give the benefit of the doubt to the opposition, which in this case would be Acosta and CNN. Of course, given the contempt which this President has shown for the Rule of Law and Freedom of the Press as a candidate and an officeholder, I suppose it’s not surprising at all even if it is a pretty dumb thing to do.

UpdateThe Washington Post is reporting that the White House and CNN have settled their dispute via an agreement under which Acosta’s press pass will be fully restored and CNN will withdraw its lawsuit. No further details at this time.

FILED UNDER: Donald Trump, Fifth Amendment, First Amendment, Law and the Courts, Media, Politicians, U.S. Constitution, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. dennis says:

    Remember when The Huffington Post refused to cover/headline Trump during the 2016 campaign due to his … being him? Yeah, I think HP was on to something …

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  2. @dennis:

    I’m beginning to think that a coordinated press strike, even if only for a day, might be in order. Refuse to cover the White House. Don’t take phone calls from White House officials. Freeze them out.

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  3. dennis says:

    Meh, on day 13 of the TRO, Acosta should turn in the press pass and tell Trump he’s not worth covering. That’d send Trump into a tweet spin. Of course, I’d cut off my nose to spite my own face, so, not sure anyone should take my advice.

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  4. dennis says:

    @Doug Mataconis:

    Agreed. That fragile ego would snap in two after a couple hours.

  5. CSK says:

    @dennis:

    Trump yesterday referred to Adam Schiff in a tweet as “Adam Schitt.”

  6. dennis says:

    @CSK:

    Yeah, what a surprise. Think I’ll take to Twitter and see if I can start a tsunami of ignoring Trump/WH.

  7. Daryl and his brother Darryl says:

    @Doug Mataconis:

    a coordinated press strike

    Nah.
    The press really needs to find an entirely different paradigm for covering a pathological liar.
    Otherwise they are only helping him spread his nonsense to the people already predisposed to believe it.
    For instance, coverage of his trip to Cali, this weekend, should have been like this:

    Highly forested California has been scorched after years of higher than normal temperatures, lower than normal humidity, and high winds, conditions that almost all reputable scientists say are attributable to climate change. Finland is a land that is similarly forested, but has prolonged periods of rain and snow. Thus they have fewer forest fires.
    The POTUS thinks they rake their forests. That is nonsense. He also disagrees with the preponderance of scientific evidence that climate change is real. Mr. Dennison offers no evidence in support of either claim.

    By leading with Dennison’s statement they always allow him to frame the discussion. Once he does that, the sycophants fall in line. By leading with the facts the discussion is framed accurately, and only dolts would fall in line.

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  8. Timothy Watson says:

    @Doug Mataconis: Maybe spend a day doing real journalism, like pulling conflict of interests reports, mileage/vehicle reimbursements, or doing some actual research instead of being a stenographer for a wannabe dictator.

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  9. @Timothy Watson:

    I see reporters covering the White House doing that all the time.

    Of course given the fact that this Administration leaks like a sieve, they can do half their job just sitting at their desk waiting for their sources to call them.

  10. Teve says:

    5,000 troops will be on the border on Thanksgiving, waiting on the Caravan of Terrorist Death. Pray for their safety.

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  11. Mister Bluster says:

    Pray for their safety.

    Only human endeavor will thwart Pud’s madness.
    Appeals for supernatural remedies are futile.

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  12. gVOR08 says:

    @Daryl and his brother Darryl: Pretty much the “truth sandwich” George Lakoff recommends. Report the facts. Then report what Trump said. Then refute the details of what he said.

  13. gVOR08 says:

    @Teve: Be good if the supposedly liberal MSM did a lot of human interest stories about the troops sitting on the border doing nothing and their families at home without them.

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  14. dennis says:

    @Mister Bluster:

    Appeals for supernatural remedies are futile.

    A fellow after my own heart …

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  15. OzarkHillbilly says:

    Officials later changed their rationale to say that Acosta had breached unwritten standards of decorum for the press.

    Let that sink in.

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  16. Joe says:

    I’m beginning to think that a coordinated press strike, even if only for a day, might be in order.

    The problem with this approach, Doug Mataconis, is that the press is not an institution or entity capable of coordination. By design and by necessity, it must be uncoordinated and uncoordinatable. Otherwise, it will either be or become what Trump and other right-wing commentators accuse it of.

  17. It is being reported that the White House and CNN have settled this matter. The White House will fully restore Acosta’s press pass and CNN will withdraw its lawsuit.

    Not sure of any further details at this time,

  18. Daryl and his brother Darryl says:

    @Doug Mataconis:

    From @presssec: new rules for reporters at WH press conferences.
    – one question per reporter, then yield floor and microphone.
    – followup question “may be permitted.” Then yield floor and microphone.
    – “failure to abide” may result in suspension/revocation” of WH press pass.

  19. Mikey says:

    @Doug Mataconis: This can’t be seen as anything but the White House rolling over.

    Er, I mean “WINNING!”

  20. Mikey says:

    @Daryl and his brother Darryl:

    followup question “may be permitted.”

    Oh, so you can only challenge Trump on an obvious bald-faced lie if he agrees to let you.

    Why any media organization would consent to this bullshit baffles me. Well, Fox News maybe, but they don’t challenge anyway, they enable.

  21. OzarkHillbilly says:

    @Mikey: In defense of them, he is the president and when the president speaks, it is news. HOWEVER… They could lead every story about his statements with, “President Tells Another Bald Faced Lie”.

  22. Mister Bluster says:
  23. dennis says:

    @Mister Bluster:

    Geezus. What a moron this guy is. A waste of time and tax dollars.

  24. Hal_10000 says:

    Sorry. Opting out of this circus. Two bloated egos arguing about press passes. I recognize the danger of barring press from conference. I also recognize a wrestling heel and star playing us for attention. No thanks.

  25. Just nutha ignint cracker says:

    @Doug Mataconis: How sure are you that you want Trump’s twitter feed to be the only source of information from the White House? No dog in this fight, just a question that came to mind.

  26. dennis says:

    @Just nutha ignint cracker:

    C’mon, now. Do you really believe Trump’s tweets matter to anyone other than the rubes who voted for and support him? No. I think we should try that out: let Trump’s tweets be the sole source of information people get. In just a few hours, this entire administration would be [more] exposed for the fraud it is and perpetrates on us all.

  27. al Ameda says:

    @Hal_10000:

    Sorry. Opting out of this circus. Two bloated egos arguing about press passes. I recognize the danger of barring press from conference. I also recognize a wrestling heel and star playing us for attention. No thanks.

    While I understand your sentiment, this is exactly where Trump takes us – a place where we’re fatigued by is idiocies, we want to tune out the ambient noise. The poblem is, he won’t let us tune it out, and his base support loves this bullsh**.

    Me? I’m hoping that people on the Right finally acknowledge that he’s thoroughly degraded the Presidency and the official offices of our government. They want a conservative? Fine, but is Trump worth the price of jettisoning your sense of right and decency in order to get where you want to go (ends and means)? Right now Republicans have decided that it’s worth it.