Media critic

A small debate emerged after CNN chief White House correspondent Jim Acosta tussled with President Trump in a high-profile post-election news conference at the White House. Was Acosta grandstanding when he declared the he wanted to “challenge” Trump on his caravan rhetoric? Would a more traditional approach have worked better? Is there a place for crusading at the White House?

Wednesday reminded us of the irrelevance of these questions.

Justice Department lawyers, defending the Trump administration’s revocation of Acosta’s credentials, submitted a brief on Wednesday responding to CNN’s lawsuit seeking their restoration. The network is seeking a restraining order against the White House, an action that government lawyers are opposing on a number of grounds, including:

  • The threshold for the issuance of a restraining order is high.
  • The First Amendment doesn’t “restrict the President’s ability to determine the terms on which he does, or does not, engage with particular journalists,” reads the brief. The argument here draws on the often haphazard nature of media access. Presidents, mayors, town council members, congressional representatives — they all make selections about who will get to interview them and when. “That discretion extends to his White House staff; the President is free to instruct White House officials to respond positively to particular journalists’ requests for information, interviews or questions, and he is equally free to instruct White House officials to do the opposite by declining similar requests from a different journalist,” notes the argument.
  • CNN is wrong to rely on the 1977 case in Sherrill v. Knight, in which U.S. Court of Appeals for the District of Columbia Circuit ruled on a White House-access case involving Robert Sherrill of the Nation. As a story in The Post summarizes: “Denial of White House credentials was a sufficiently grave infringement on the freedom of the press that it couldn’t just be done by fiat. It required, at the very least, ‘notice of the factual bases for denial, an opportunity for the applicant to respond’ and ‘a final written statement of the reasons for denial.’ Notably, the court prohibited ‘content-based criteria for press pass issuance.’ ” The government’s pushback stresses that Sherrill pertained to a situation in which a reporter was denied access for security reasons. The rationale for revoking Acosta’s hard pass, suggests the brief, is more pressing. “In stark contrast to Sherrill, Mr. Acosta’s access has been denied at a different stage in the decisional process (the White House’s discretionary decision about which journalists to speak with), ratified by a much higher-level decisionmaker (the President), and is based on a personal interaction between the President and Mr. Acosta (the November 7 press conference),” argues the brief.

And so on. In a hearing before U.S. District Judge Timothy J. Kelly on Wednesday afternoon, Deputy Assistant Attorney General James Burnham was forced to expound upon these arguments. It was unsightly. The White House, Burnham argued, has been “consistent” throughout the drama revolving around the revocation of Acosta’s hard pass, even though the record indicates otherwise. The triggering issue, he contended, was Acosta’s “refusal to comply with general standards of a press conference.”

CNN’s argument that the revocation was a capricious act didn’t impress Burnham, who said, “I think it’s pretty clear that disrupting a press conference isn’t an arbitrary” basis for the White House’s actions. Another plank of the government’s case is essentially this: What’s the big deal here? After all, both parties agree the president wouldn’t be violating anyone’s rights if he ignored Acosta every single day. “No reporter has a right to get answers to any questions from any officials. . . . If the president said, ‘No one speaks to Jim Acosta ever again’ . . . If the president gave that directive to the White House staff and said, ‘No one acknowledge his presence if he’s in the building’ — that would be totally fine under the First Amendment,” said Burnham.

Another non-right, argued the Justice Department lawyer, is access to the White House grounds: “It’s the president’s official residence, it’s his personal office.” He added: “It’s kind of hard to see what the hard pass adds beyond the right to get answers, which I think is clear the reporter doesn’t have.”

There was more. In seeking to uphold the revocation, Burnham argued that the First Amendment harm suffered by both Acosta and CNN were minimal. After all, Acosta can monitor proceedings at the White House through other means. He could work the phones, and so on. Plus: Even if Acosta did get back in, the president would be within his rights to diss him at all times. Here, Burnham actually spun out what might well serve as an authoritarian fantasy: “The First Amendment injury, I guess, is Mr. Acosta’s ability to be in a room where he has no right to speak,” said Burnham. “The vast majority of these events, in fact all of these events . . . are televised live, so he could watch all of them on CNN and report on it just as effectively.” This government lawyer is a government lawyer, not a journalist.

“As for CNN, I don’t think there’s any harm at all,” said Burnham, again making the argument that CNN has multiple hard passes to the White House. Of course, it is tantamount to asserting control over who represents news outlets at the White House. 

In a sound bite that’ll surely please the president’s most dedicated supporters, Burnham disputed the idea that the revocation was an act of viewpoint suppression. “Grandstanding . . . is not a viewpoint,” he said. Another good one: “A single journalist’s attempt to monopolize a press conference is not a viewpoint.”

Theodore Boutrous, a lawyer representing CNN, recited Trump’s long-standing grudge against the cable network, dating all the way back to that Jan. 11, 2017, news conference during which the president dubbed Acosta “fake news.” There were many other moments of presidential bullying as well. “Never will there be more evidence of facial discrimination and animus” against CNN, argued the network’s lawyer.

Kelly, the district judge, seemed hung up on the idea that, well, Trump has been slapping CNN around for months, for years: What about Nov. 7 pushed the matter to this point? What about the argument that Acosta was rude and disruptive? Boutrous argued that the president has mused for some time about the possibility of revoking credentials and, as to the rudeness complaint, Trump is “the most aggressive, dare I say, rude person in the room,” said Boutrous. The “tenor” comes from him, not from some guy from CNN.

Citing the network’s due-process argument in the case, Boutrous noted that the White House has set up credentialing procedures for reporters to follow in seeking hard passes. It exists, it’s been formalized — and it’s a significant consideration: “Having given access, having created this process, the First Amendment is triggered,” said Boutrous.

Boutrous, from the Los Angeles firm Gibson, Dunn & Crutcher LLP, verily spoke in all-caps when he answered the judge’s inquiries about the sufficiency of CNN’s due process. “There was no process,” he said.

After listening to arguments from both sides, Kelly said he’d mull over the arguments and reconvene on Thursday at 3 p.m. As he shuffles through papers and transcripts and precedents, he might consider hovering on a paragraph in the government’s reply brief. It’s right here:

Finally, Plaintiffs fail to reckon with the extraordinarily intrusive nature of the judicial relief they seek — a decree ordering the President to grant access to facilities in his official residence and personal offices to a specific journalist he has decided to exclude. At this preliminary stage, that hardship is far more significant than any hardship on Plaintiffs. For that reason, too, emergency relief is unwarranted.

Bolding is added to insert an obvious hijacking of “the People’s House” for the private pleasure of some guy. This is the Trump Tower clause.