In its lawsuit against the Trump administration, CNN argues that the case is about more than the credentials of Jim Acosta. 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 concern.
The attorney for the government, the Justice Department’s James Burnham, argued that Trump 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.
At one point, Burnham said 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 said that he would rule on Thursday on CNN’s motion to at least temporarily restore Acosta’s White House press credentials. After filing its lawsuit on Tuesday, the network then made a motion for 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Acosta’s credential was revoked on the evening of Nov. 7, hours after a press conference in which Trump called him “rude” as he tried to ask followup questions when the president wanted to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, over 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 said. “There’s a threat to the president not being asked a question aggressively by a reporter.”
He pointed to what he said were shifting explanations for 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, in which the speeds were manipulated to highlight what happened, and accused Acosta of “placing his hands on a young woman.” But she is no longer making that argument, nor is the 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.
CNN claims that the credential was not pulled because of the confrontation, but because Trump has long shown animus toward Acosta and CNN over the nature of their coverage. That would be a clear violation of the First Amendment, and Boutrous cited examples before and after the incident.
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?” he 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 berates them.
“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 other reporters 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’s initial decision in the case could rest on whether a process was followed. 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 with the Secret Service approval, but did not address how the White House press office could weigh whether to grant a pass.
At the press conference, Trump called Acosta “rude,” and the administration contends that in and of itself was a warning sign to Acosta about his behavior. Boutrous, though, said that such an argument doesn’t make sense because “there has never been a standard” for what constitutes “rude” behavior at a presidential press conference, enough to trigger the revocation of credentials. Trump, he said, “encourages that kind of rough and tumble discussion.”
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