Trump Administration Argues Against Restoring Jim Acosta's White House Badge

Jim Acosta Donald Trump Nov 7 - H - 2018

In advance of a hearing this afternoon, the Trump Administration is standing behind its decision to strip CNN reporter Jim Acosta of the hard badge that allows him regular access to the White House. After being ordered by a D.C. federal judge to respond to CNN's demand for a temporary restraining order, the government has filed court papers in opposition to Acosta's bid to have his badge restored.

CNN sued Donald Trump and his underlings Tuesday and alleges violations of the First and Fifth Amendments.

In its complaint, the news network recounts what happened last Wednesday when Acosta repeatedly asked questions to Trump's ire. After a press briefing, Acosta had his badge revoked in what longtime White House correspondents say was an unprecedented move.

The initial explanation from the White House was that Acosta's badge was revoked because he was being disrespectful, but more recently, Trump's staff indicated it wouldn't tolerate how he continued to ask questions even upon the demand that he give up the microphone. 

CNN isn't convinced, telling a judge in the complaint that the punishment "is the culmination of years of hostility by President Trump against CNN and Acosta based on the contents of their reporting — an unabashed attempt to censor the press and exclude reporters from the White House who challenge and dispute the President’s point of view."

The Trump Administration says that the decision to strip Acosta of his pass was "viewpoint- and content-neutral" and that CNN is unlikely to show a likelihood of success on the merits.

"With respect to their First Amendment claim, the President and his staff have absolute discretion over which journalists they grant interviews to, as well as over which journalists they acknowledge at press events," states the brief (read here in full). "That broad discretion necessarily includes discretion over which journalists receive on-demand access to the White House grounds and special access during White House travel for the purpose of asking questions of the President or his staff. No journalist has a First Amendment right to enter the White House and the President need not survive First Amendment scrutiny whenever he exercises his discretion to deny an individual journalist one of the many hundreds of passes granting on-demand access to the White House complex."

Justice Department lawyers also address Sherrill v. Knight, a 1977 case where a reporter for The Nation was able to show the Secret Service violated due process by not offering satisfactory explanation for denial of a badge.

According to the government, "that case is not as broad as they suggest. Far from establishing all-purpose rules for regulating White House press passes — rules that apply to everything from the Secret Service’s determinations about security risks to the President’s personal exercises of discretion based on his firsthand observations — Sherrill addressed solely the Secret Service’s decision to deny a pass on security grounds to a journalist to whom the White House had otherwise decided to grant access. That critical predicate is absent here; 'all parties' do not 'recognize' that Mr. Acosta deserves access to the White House as soon as he clears a Secret Service security review."

The case has been assigned to U.S. District Judge Timothy J. Kelly, a Trump appointee who will hear CNN's motion for a TRO at 3:30 pm today.

The purpose of the hearing won't be the fight over disputed facts and while the merits of CNN's case will get some attention as CNN must demonstrate a likelihood of prevailing in order to obtain a TRO, the critical factor could be whether Acosta will experience irreparable harm should his access not be restored. Acosta argues that his livelihood as a professional reporter is at stake while Trump's legal team downplays the harm.

"[T]hey cite no critical event expected in the next several weeks that requires immediate judicial intervention pending expedited preliminary injunction briefing," continues the brief. "Mr. Acosta remains able to practice his profession and report on the White House. And CNN’s straits are even less dire, given 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."

The Justice Department adds that the balance of equities — another factor in the TRO analysis — doesn't tip in favor of CNN and Acosta.

Should Judge Kelly grant the TRO and restore Acosta's badge, the defendants say it would be "an unprecedented and extraordinarily intrusive order that would require the President and Secret Service to grant on-demand access to the White House complex, West Wing press offices, and other facilities in the President’s official residence and personal office suite to someone he has decided to exclude."

Fox News, a competitor of CNN often seen as friendly to Trump, is standing behind its rival.

In a statement, Fox News president Jay Wallace said, "Fox News supports CNN in its legal effort to regain its White House reporter’s press credential. We intend to file an amicus brief with the U.S. District Court. Secret Service passes for working White House journalists should never be weaponized. While we don’t condone the growing antagonistic tone by both the President and the press at recent media avails, we do support a free press, access and open exchanges for the American people.”