A federal judge in Washington, D.C., is expected to rule Thursday on CNN’s lawsuit seeking immediate restoration of Chief White House Correspondent Jim Acosta’s press pass.
Earlier this week, CNN sued President Trump and other White House officials, contending that they acted unconstitutionally when they stripped Acosta of his press credentials, known as a “hard pass.” The network is seeking a temporary restraining order while the case plays out.
Judge Timothy Kelly, a Trump appointee, heard two hours of argument late Wednesday.
Judge Kelly did not tip his hand during the argument. He did, however, repeatedly suggest that since Trump has long attacked CNN — calling its coverage “fake news” — that Acosta was stripped of his credentials not because Trump dislikes his coverage but for some other reason — namely that Acosta had refused to sit down when told to and been rude at Trump’s post-midterm news conference on Nov. 7.
CNN’s lawyer Theodore Boutrous Jr. replied that it was the president who was the “most aggressive,” and “rudest” person in the room on Nov. 7. He added that if asking follow up questions or challenging the president were grounds for having a press pass taken away, at least ten other reporters would have lost their credentials, too.
What is CNN’s position on the allegation that Acosta put his hands on an intern to keep her from taking the microphone, Judge Kelly asked.
“That is false,” replied Boutrous, as is demonstrated by the fact that the Trump administration has now “abandoned” that claim in its legal filings.
The judge then asked why it matters that they have abandoned the claim.
Boutrous replied that the shifting justifications “destroy the White House’s credibility” as to why the press pass was withdrawn.
There’s “no argument here” that Acosta is any danger to the president, Boutrous said, adding that Trump “didn’t have to call” on him at the news conference. Indeed, the White House “could have turned off his mic,” he said.
Arguing on behalf of the administration, Deputy Assistant Attorney General James Burnham contended that the president has broad discretion to strip any reporter of White House press credentials if he wishes. Nobody would argue that the president can’t select which reporters he will grant interviews to, said Burnham, and a news conference is just “an interview with 100 people.”
Is it the White House’s position, Judge Kelly asked, that the president would be entitled to say we don’t like your reporting, so we are pulling your press pass?
“Yes,” replied Burnham.
Moreover, he observed that CNN has 50 other reporters who have White House passes.
What specifically is your justification for revoking Acosta’s press pass, Kelly asked.
Burnham answered that the standard is whether the reporter was “disorderly,” or “rude,” or “grandstanding.” Pressed by the judge, however, Burnham conceded that he knew of no other case in which a president had stripped a reporter of his White House credentials.
The judge pursued the matter further, asking how he should consider the unprecedented nature of the decision. After all, he observed, [former ABC White House correspondent] Sam Donaldson and plenty of other “contentious” reporters have refused to sit down.
Burnham replied that it is not “fair” to compare presidents on how they handle the media. One president can handle things one way, while another president can handle things differently, he said.
After Burnham sat down, CNN lawyer Boutrous, in rebuttal, called the Trump administration’s views on the First Amendment “warped.” There’s no First Amendment doctrine that says “because there are lots of other reporters you can ban one,” he argued. Maybe that’s “the one reporter who will break … a story wide open.”
As to the standard set forth by the president’s lawyers — that the “president believes” a reporter has been “disorderly, Boutrous said, “That is no standard” because it gives the president “standard-less discretion.”
Judge Kelly observed that looking at the video of the news conference in question makes it very clear that Trump is trying to move on to the next question and questioner.
Presidents frequently do that, replied Boutrous, and reporters just as frequently try to force an answer, he said.
Democracy is sometimes “unpleasant” but having a free press is one of the ways democracies hold governments accountable, Boutrous said.
Acosta came to courthouse for the argument, and joining Boutrous in representing CNN and Acosta was former Solicitor General Ted Olson, who served under President George W. Bush.
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