CNN Requests New Hearing After White House Threatens to Revoke Jim Acosta’s Hard Pass Again

Ted Johnson

WASHINGTON — CNN’s legal team says that a new Trump administration effort to revoke Jim Acosta’s hard pass still violates his constitutional rights.

The news network is asking for a hearing next week, but one could come sooner.

A federal judge on Friday ordered that Acosta’s credentials be restored, after he granted CNN’s request for a 14-day temporary restraining order, ruling that the administration failed to give their chief White House correspondent his due process by revoking his hard pass after a contentious Nov. 7 press conference.

But hours after Acosta returned to the White House grounds on Friday and began reporting on his beat, White House press secretary Sarah Huckabee Sanders and deputy chief of staff for communications Bill Shine sent Acosta a letter informing him of their preliminary decision to revoke his pass. They gave him until 5 p.m. on Sunday to respond, and wrote that they would issue a final determination by 3 p.m. on Monday. Their letter ostensibly was to establish a paper trail that would satisfy the judge’s concerns.

In their letter, they wrote that Acosta failed to follow “basic, commonsense practices” for conduct that “are necessary for orderly press conferences that are fair to all journalists in attendance.” They cited Acosta’s attempts to ask followup questions of President Donald Trump and refusal to give up a microphone after an intern attempted to get it from him. But they also acknowledged that the White House does not have a written code of conduct for press conferences.

CNN’s lead attorney Ted Boutrous wrote in response that the administration was now seeking “to punish Mr. Acosta based on a retroactive application of unwritten ‘practices’ among journalists covering the White House.”

“This ex post facto application of vague, unarticulated standards to a journalist’s access to the White House is not only different from your original explanations, but it is the same sort of due process violation that led the district court to issue a temporary restraining order against you on Friday,” he wrote.

He also noted that other journalists at the Nov. 7 press conference also attempted to ask a followup question even after Trump moved on to another journalist, but they did so without consequence.

The White House, however, keyed in on the refusal of Acosta to give up the microphone, although they no longer are making the claim that in the process of doing so, he placed his hands on the intern.

Sanders and Trump say that the White House is working on written standards of decorum for press conferences, but those, too, could face a legal challenge if they are too vague. CNN’s legal team suggested that the administration work over the next 14 days with the White House Correspondents Association to “formulate agreed upon protocols for future press conferences.”

Boutrous wrote that “would be a more productive path that continuing to violate Mr. Acosta’s constitutional rights with explanations that simply aren’t true.”

CNN is now moving forward with its request for a preliminary injunction, which would bar the Trump administration from pulling Acosta’s hard pass at least until the litigation is revolved. The network’s lawyers want the judge, Timothy Kelly, to give the Trump administration until Tuesday to file a response to that motion.

The Trump administration’s attorneys, meanwhile, said in a court filing that it will make a final determination on whether to again pull Acosta’s pass by 3 p.m. on Monday. It would still have to ask the court to lift the restraining order to take such an action. “So far, the White House has taken only the first step in fulfilling the due process obligations this Court imposed; it has not yet made a final determination, much less sought relief from the Court’s TRO,” the government said in a court filing. It has been represented in court by a team from the Department of Justice that includes James Burnham, the deputy assistant attorney general.

A hearing also may be held on Tuesday, as attorneys last discussed meeting to talk about scheduling and procedures in the case.

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