The suspension invited a farce, as a federal judge was called upon to retroactively referee a battle of meatheads on the White House grounds. Was Karem joking when he made a quip about the Trump devotees at the Rose Garden that day? Was Karem challenging former White House aide Sebastian Gorka to a fight when he said, “Hey come on over here and talk to me, brother, or we can go outside and have a long conversation.”
A reasoned sanity suffused Contreras’s ruling. “The Court cannot conclude that Karem’s behavior was clearly proscribed by [a standard in a previous White House document], or even by any widely understood standard of ‘professionalism’ or ‘decorum’ within the context of such an unruly event,” he wrote. The decision aligned with a hearing in which Contreras wondered aloud about the importance of “context” in understanding Karem’s behavior in the Rose Garden. He even noted how the Trump supporters in attendance had used derogatory terms in referring to Karem. “ ‘Punk’ has a certain connotation, ‘punk ass’ even more so,” said the judge.
In his ruling, Contreras wrote, “This event was also one where jocular insults had been flying from all directions. There is no indication in the record that other offenders were reprimanded, or even told to stop.” The judge also found that Grisham had fallen short of constitutional due process protections: “The present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances,” wrote Contreras.
Put together, the ruling slapped the White House on both cheeks: Your claims to be crusading for decorum ring hollow, and you failed to do the administrative legwork necessary to take a step this extreme. On those rationales alone, Contreras granted Karem’s motion for a preliminary injunction. “The Court does not reach, and takes no position, on Karem’s independent First Amendment free speech claim,” wrote Contreras, declining to rule on whether the White House was seeking to suppress Karem’s sometimes boisterous voice.
Just days after Contreras’s ruling, however, President Trump himself made clear that First Amendment rights on the White House grounds are under siege. The tweet below stems from Trump’s frustration with a story by The Post’s Philip Rucker and Ashley Parker on the White House’s “lost summer”:
With that thought, Trump might have scuppered any chance that his White House will ever be able to boot a reporter in a way that passes judicial muster. That’s because media lawyers, equipped with this tweet, will claim that Trump has made an explicit connection between unfavorable reporting and access to the White House. That’s called viewpoint discrimination, and it’s a no-no under the First Amendment.
“This tweet from President Trump will be powerful evidence in our appeal and in any future case — an express admission — that this White House is wielding the hard pass credentialing process as a weapon to punish and chill reporters who publish stories the president doesn’t like,” notes Ted Boutrous, an attorney with Gibson, Dunn & Crutcher who represents Karem. “It’s truly brazen and shows a total disrespect for basic First Amendment principles.”
All of which brings us to the other way of looking at the situation: The White House views the ejection of White House reporters as a national priority, along with ending health-care policies that are saving lives and seeking foreign intervention in U.S. politics. There’s no other way to explain the persistence with which Trump and his people have pursued these matters. Last November, then-press secretary Sarah Sanders announced the revocation of CNN correspondent Jim Acosta’s press pass only to sustain a quick and decisive loss in court. Acosta had committed the sin of both pressing Trump at a widely viewed news conference and refusing to surrender the microphone.
There are many similarities between those two cases: The lead lawyers on both sides — Boutrous for the journalists; Deputy Assistant Attorney General James Burnham for the government — were the same; the legal issues — whether the government had met the due process requirements to yank something as precious as a press pass (see Sherrill v. Knight) — were mostly the same; and the outcome was the same.
Asked about the goal of the White House in pursuing an appeal, Grisham replied, “I can’t comment on pending litigation, but I’d point out that the White House works very hard to provide the press with travel services and accommodations, dedicated staff, and 24/7 access to the press team. This is in addition to office space and outdoor areas for members of the media to conduct live shots, all of which is at a significant cost to the American taxpayer.”
The Erik Wemple Blog would like to emphasize that such accommodations accrue to the benefit of the American taxpayer, whatever the cost. It’s critical, after all, to keep an eye on a fellow who fantasizes about taking extra-constitutional measures against reporters just because they say he had a bad summer.