The President Can Bar Any Reporter From White House, Justice Dept. Lawyer Argues

Jim Acosta Donald Trump Nov 7 - H - 2018

Judge Timothy J. Kelly will rule on CNN's request for a temporary restraining order restoring Jim Acosta's press pass on Thursday afternoon.

President Donald Trump has the right to exclude any reporter he wants from the White House, a lawyer for his administration argued during a hearing on Wednesday to address CNN's motion for a temporary restraining order that would return reporter Jim Acosta's press pass.

Deputy Assistant Attorney General James Burnham argued in Washington, D.C., District Court that the White House is, for all intents and purposes, Trump's home — rather than a public building. Therefore, Burnham told Judge Timothy J. Kelly that the president is allowed to make discretionary decisions about which reporters can enter.

Acosta's press pass was suspended Nov. 7 after he tussled with the president during a post-midterm press conference earlier that day.

CNN sued the president, White House press secretary Sarah Huckabee Sanders, communications chief Bill Shine and others on Tuesday, arguing that Acosta's First and Fifth Amendment rights were violated by the administration.

But Burnham argued that a White House press conference is no different than a small interview session during which the president can select which reporters interview him, so as to ensure better coverage for himself.

He said it's "not true" that the First Amendment has discretion over the president when it comes to who can be in the White House.

CNN has made exactly the opposite case, saying that the White House is Acosta's place of work and his access to the facilities is absolutely necessary both for his job and for the network's overall coverage of the Trump administration, not to mention for press freedom.

"This government is now taking the position that the president can do anything he wants, and ban journalists," said Theodore J. Boutrous, Jr., lawyer representing CNN and Acosta.

After Judge Kelly, a Trump appointee, called the case a "unique circumstance," Boutrous said it's unique "because no president has ever disregarded the First Amendment and due process before."

Burnham argued that Acosta has barely been harmed by the suspension of his pass, saying that he could simply watch White House press briefings on CNN "and report as well as if he was in the room."

Boutrous objected vehemently. "That's not how reporting works," he said. "It's just simply a misunderstanding of journalism."

In responding to CNN's lawsuit on Wednesday morning, the government pointed out that "the network has roughly 50 other employees who retain hard passes and who are more than capable of covering the White House complex on CNN’s behalf." Boutrous echoed CNN Washington bureau chief Sam Feist's sworn statement in saying that Acosta is an "aggressive, excellent reporter" who is uniquely suited for his position.

At the end of the hearing, Judge Kelly announced that he would take both perspectives "under advisement" and return a verdict on CNN's motion on Thursday at 3 p.m. ET.

Both parties argued about whether the White House followed due process when suspending Acosta and announcing his suspension, which was done hastily on Nov. 7. Burnham admitted it was a "shotgun process."

The government lawyer argued that President Trump "ratified" the decision made by the White House press team during comments made following the suspension, thereby illustrating that it received administration approval. But, Judge Kelly said, "[d]ue process runs through the entire government." He asked, rhetorically, "Does it matter?" that the president signed off on it.

"He admitted there are no standards" for making the suspension decision, Boutrous said of Burnham's comments.

While Sanders originally premised Acosta's suspension on the allegation that he "[placed] his hands on a young woman just trying to do her job as a White House intern," that rationale did not appear in later statements and Burnham said on Wednesday that the government is not "relying" on that specific accusation to make its case.

Judge Kelly, without betraying which way he's leaning on the motion, said early on in the hearing that there is "some evidence to suggest it was the reporter's behavior" that triggered the suspension.

Burnham made the case that "there's been no chill" among White House reporters after CNN argued that Acosta's suspension would discourage White House reporters from asking combative questions for fear of losing access.

Judge Kelly, in response, said it would be hard to cite discernible evidence of such a "chill."

The case will hinge in part on whether the judge decides that the White House's decision was "content-neutral," a contention that Boutrous disputed, using as evidence disparaging remarks the president has made about CNN and about Acosta.

"'Rudeness' is really code for 'I don't like you being an aggressive reporter," Boutrous said. "The content-based evidence is overwhelming."

The lawyer also argued that, during the Nov. 7 press conference, President Trump was "the most aggressive, dare I say, 'rude,' person in the room. President Trump establishes the tenor of these press conferences."

Boutrous also pointed to an email sent out on Wednesday by Trump's re-election campaign, in which supporters were told that the president "will NOT put up with the media’s liberal bias and utter disrespect for this administration and the hardworking Americans who stand with us."

Burnham, who said the email was not coordinated with the administration, had argued that Acosta was suspended solely because of his "disorderly" behavior at the press conference and not because of any media bias against him or his organization.

Beyond restoring Acosta's press pass, CNN wants the judge to make a declarative statement that would discourage this White House and future White Houses from taking similar actions against reporters.