The court battle over Karem’s access to the White House grounds is the second set-to of this kind in the past year. Last November, U.S. District Judge Timothy J. Kelly ruled in favor of CNN chief White House correspondent Jim Acosta, whose credentials had been revoked following some unpleasantness during a post-midterm-election news conference at the White House.
Arguments at Tuesday’s hearing rested on the fine points of the Great Spat of July 11. On that day, the White House convened a so-called social media summit consisting of Internet influencers and personalities with staunchly pro-Trump views. Attendees were invited to stick around for some remarks by the president concerning his approach to citizenship and the 2020 Census. Once he completed his remarks, Karem asked whether he’d stick around for some questions.
As Trump departed, Karem and other members of the White House press corps stood alongside the pro-Trump social media folks. Two warring contingents were separated by a flimsy rope line. What could possibly go wrong?
After Karem’s request for a Q&A session flopped, he sustained some gentle chiding — “Don’t be sad.” In what Karem said was a joke, he quipped about the others, “This is a group of people that are eager for demonic possession.” Most people laughed.
Sebastian Gorka didn’t laugh, however. Somehow, the former White House official and Salem Radio host caught onto the flap from quite a distance and questioned Karem’s journalistic bona fides. “Hey, brother, we can talk any time you want or go outside and have a long talk,” responded Karem. They were both already outside, but Gorka interpreted those remarks as a threat and stormed over to Karem: “You’re not a journalist. You’re a punk!” As Gorka walked away, Karem counseled him to “go home” and “get a job.” Another voice in the crowd offered his pugilistic opinion that Gorka would “kick your punk ass.”
American exceptionalism, it was not.
Grisham, who had been named press secretary in June, seemingly waited until exactly everyone on Earth had forgotten about the dust-up before sending her Aug. 2 letter to Karem announcing her “preliminary decision” to suspend his hard pass. She gave the Playboy correspondent one business day to respond, though she later agreed to meet with his lawyers and accept a statement from the reporter explaining his side of the story. No matter: On Aug. 16, Karem learned that he couldn’t ply his trade for a month.
A critical component of the Karem case stretches back to the legal battle of Acosta, whose lawyers argued that a U.S. Court of Appeals decision from 1977, Sherrill v. Knight, established that a reporter’s interest in a hard pass (First Amendment) is compelling enough to require due process for its issuance/revocation (Fifth Amendment). In Karem’s case, however, there were no written standards or regulations governing raucous bro-jeering in the Rose Garden following a media event.
On Tuesday, Contreras, the U.S. district judge, asked Ted Boutrous, Karem’s lawyer, whether there was any conduct so outrageous that the White House would be justified in suspending access. Contreras cited the example of mooning the press secretary as a way of “trying to figure out where the lines are.” Though Boutrous noted that he didn’t relish the imagery, he said that a reporter’s job often involves “engaging in raucous conduct” and is “disorderly by nature.”
Along that same line of inquiry, Contreras asked Boutrous whether he’d have a talk with a law associate who’d behaved in such an “undisciplined” manner in public. It was a good question — one that Boutrous used to clarify important differences between the judge’s hypothetical and Karem’s predicament. Perhaps he’d have a chat with the misbehaving colleague, Boutrous said. But he wouldn’t fire the colleague, suspend the colleague or seek the colleague’s disbarment. What’s more, Trump and Grisham aren’t Karem’s boss, argued Boutrous.
As to the broader issue of Karem’s “unacceptable” conduct, Boutrous argued that the White House has scant authority in this particular province. “They’ve thrown decorum out the window,” charged Boutrous, citing the president’s stated wish to punch a protester in the face, among other manners infractions. “How can a reporter know where the guideposts are?”
Contreras appeared to have some sympathy for this argument. He noted that there is important “context” to what happened in the Rose Garden — which is to say that the White House apparently tolerated the aggressive and taunting behavior of the guests and particularly Gorka — thus challenging the rationale for taking aim at Karem’s hard pass. “ ‘Punk’ has a certain connotation, ‘punk ass’ even more so,” noted Contreras.
On the specific allegations of bad behavior against Karem, Contreras was divided: He averred that the “demonic possession” quip was “meant as a joke and received as a joke.” And he showed skepticism that Karem’s offer to “go outside” and talk was an authentic invitation to talk and not pre-fistfight trash-talking. When Boutrous said that Karem did his best under the given circumstances, Contreras replied, “I’m not so sure I would say he dealt with it as best he could.”
Arguing for the government, Deputy Assistant Attorney General James Burnham said that Karem is “adamant that he did nothing wrong” and backed Grisham’s finding that he had behaved impermissibly with his “go outside” language. The idea that Karem actually wanted to enjoy a conversation with Gorka — in a stroll around Lafayette Square, for example, or over a drink at the Old Ebbitt Grill — is “implausible,” said Burnham, who also represented the government in the Acosta case. “Everyone knew he was out of control,” said the government lawyer. Karem uttered sotto voce rebuttals from the peanut gallery.
Burnham tweaked the arguments of Karem & Co. that they’re somehow “constitutionally entitled to fling insults” around the White House. When his rebuttal moment arrived, Boutrous pointed out that the First Amendment does smile on the flinging of insults. “As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate ‘breathing space’ to the freedoms protected by the First Amendment,’” the Supreme Court held in Boos v. Barry.
Responding to Karem’s argument that Grisham is ill-equipped to deny press credentials — acting as an agent of proud media foe President Trump — Burnham argued that the press secretary is already recognized as the official entrusted with signing off on the issuance of White House hard passes. Why, then, can’t she wield the power to revoke or suspend them?
The purpose of a hard pass, argued Burnham, is to report on the news, not to “create” the news. “There was news being made, but it was being made by Mr. Karem and Mr. Gorka.” Sitting in the courtroom, the Erik Wemple Blog shuddered a bit at this standard. Over the years, a great many White House reporters — Sam Donaldson (who wrote a declaration in favor of Karem in this case), Jake Tapper, Helen Thomas, April Ryan, Karem — have been accused of grandstanding at White House briefings and the like. These were occasions, by and large, during which the journalists were both reporting the news as well as creating the news.
Contreras told the parties that he would evaluate the arguments and issue a ruling on Karem’s motion by either Friday or next Tuesday. He asked the government to provide him any statement issued by a Secret Service agent on the grounds on July 11. Boutrous said the White House mentioned a portion of such a statement but declined to provide a copy of it. The statement could shed light on whether the agent felt either of the men was spoiling for a fight.
Throughout this fight, Karem and his legal team have argued that the White House’s action is “viewpoint discrimination” animated, perhaps, by the reporter’s Aug. 1 question to the president about Sen. Bernie Sanders’ observation that he was a “pathological liar.” Burnham provided a compelling response, noting that Trump fields many tough questions from reporters, without any adverse consequences. That’s certainly true. Even so, there remains a possibility that the president and his colleagues went after Karem for personal reasons. Or — always a possibility in this White House — they went after Karem for no particular reason at all. Whatever the motivations, the outcome is dire: Trump wants to cheer on a Montana politician who body-slammed a reporter while simultaneously scolding a White House correspondent for lack of professionalism.
There are signs that Contreras is keyed into the official hypocrisy. In addition to his comments about “context,” he agreed with Boutrous that the atmosphere at the Grand Spat was “circuslike.” If he doesn’t rule in favor of Karem, the White House will have figured out how to silence a reporter in a fashion that passes judicial muster, a dangerous precedent in the hands of this administration, let alone its successors.
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