In light of the White House’s unexpected action, the network’s lawyer requested an expedited schedule which would allow the judge to enter a more lasting preliminary injunction against the White House. The renewed confrontation represents an unusual escalation in the court battle between Trump, on the one hand, and CNN and Acosta, both regular targets of the president’s wrath for reporting on his administration.
In the letter, White House press secretary Sarah Sanders and Bill Shine, assistant to the president and deputy chief of staff for communications, told Acosta that his behavior at a Nov. 7 news conference “violated the basic standards governing [news conferences], and is, in our preliminary judgment, sufficient factual basis to revoke your hard pass."
President Trump, the letter makes clear, “is aware of this preliminary decision and concurs.”
On Monday morning, lawyers for CNN and Acosta asked U.S. District Judge Timothy J. Kelly, a Trump appointee, to schedule an emergency hearing next week given the White House has made clear it intends to continue barring Acosta as soon as Kelly’s order expires.
Kelly’s decision to issue the 14-day temporary restraining order Friday while he considers the merits of the case was grounded mostly in the Fifth Amendment’s due process guarantee. Kelly said the White House has an obligation to afford due process to Acosta before it can revoke or suspend his access, and found that the White House’s decision-making process in this case was “so shrouded in mystery that the government could not tell me . . . who made the decision.”
CNN’s motion characterized the letter from Sanders and Shine as an “attempt to provide retroactive due process.” Ted Boutrous, an attorney for CNN, told Justice Department lawyers in an email that he found the White House’s letter to be a “disappointing response to the court’s decision and our attempts to resolve the matter amicably.”
“More fundamentally, though,” he wrote in the email, “it is further evidence of your clients’ animus towards Mr. Acosta based on his work as CNN’s chief White House correspondent.”
Sanders and Shine gave Acosta the opportunity to contest its “preliminary decision” to again suspend his press pass by 5 p.m. Sunday. In a response from lawyers, Acosta contested the decision, saying that despite the White House’s previous admission that there are no actual written rules for journalists participating in press conferences, Acosta is now being punished “based on a retroactive application of unwritten ‘practices’ among journalists covering the White House.”
This 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."
The action was telegraphed Friday by press secretary Sarah Sanders, who said that the White House would only “temporarily reinstate” Acosta’s credentials in response to a court decision in his favor. Appearing on Fox News with her father, former Arkansas governor Mike Huckabee (R), who was substituting for Sean Hannity, she later said that “we’ve laid out in a letter to CNN and their team what we think were some of the missteps that their reporter made at the press conference on November 7th.”
CNN’s Brian Stelter of “Reliable Sources” said in his newsletter Sunday that “White House officials sent Acosta a letter stating that his pass is set to be suspended again once the restraining order expires.”
Trump said Friday that “we’re setting up a certain standard, which is what the court is requesting,” but no particular new rules have been publicly issued. On that day, after the court’s order was issued, Sanders said the White House would “develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.”
“The White House is continuing to violate the First and 5th Amendments of the Constitution,” CNN said in a statement. “These actions threaten all journalists and news organizations. Jim Acosta and CNN will continue to report the news about the White House and the President.”
CNN and Acosta, the network’s chief White House correspondent, sued the White House and Sanders last week after they suspended his press credentials following Acosta’s minor altercation with a White House intern, who tried to take a microphone out of his hands as he questioned the president.
Sanders accused Acosta of “placing his hands on a young woman” when explaining why Acosta’s pass had been suspended, but Kelly found that this allegation was “likely untrue.”
In defending the White House’s decision to suspend Acosta’s press pass, Justice Department lawyers argued that it was not an infringement on the First Amendment because CNN had plenty of other White House reporters who are “more than capable of covering the White House complex on CNN’s behalf,” and Acosta could still “practice his profession and report on the White House” — just not at the White House.
Kelly agreed that access to the White House grounds is not a First Amendment right. But he also found that a reporter’s “First Amendment liberty interest in a White House press pass” is also protected by the Fifth Amendment’s due-process guarantees, as The Washington Post’s Erik Wemple previously reported. In other words, the White House can’t just revoke a reporter’s press pass for no good reason.
In deciding whether barring Acosta amounted to “irreparable harm,” a standard for granting temporary restraining orders, Kelly pointed to the case of journalist Robert Sherrill, who fought the White House’s denial of his press pass in 1977 and also won the right to due process and a restoration of his pass (though he never actually reapplied for it).
“The First Amendment interests as recognized in Sherrill were not vested merely in publications or agencies; they were liberties of the individual journalists themselves,” Kelly said, as excerpted by Wemple. “For that reason, that CNN may still send another journalist or journalists to the White House does not make the harm to Mr. Acosta any less irreparable . . . It’s a harm that cannot be remedied in retrospect . . . So on this highly, highly unusual set of facts and interests at stake, I do find that the plaintiffs have met their burden of establishing that irreparable harm has and will continue to occur in the absence of [remedy].”
Boutrous told Stelter on “Reliable Sources” that in the absence of reaching an agreement with the White House, they plan to seek a preliminary injunction blocking the White House from suspending Acosta’s credentials for a much longer period of time as the case moves forward.
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