Judge Timothy J. Kelly granted CNN’s motion for a temporary restraining order that will prevent the administration from keeping Acosta off White House grounds. The White House revoked the reporter’s press pass last week after a heated exchange between him and President Trump and a brief altercation with a press aide at a news conference. Acosta, CNN’s chief White House correspondent, is the first reporter with a so-called hard pass to be banned. CNN sued President Trump and other White House officials on Tuesday over the revocation. Kelly’s ruling was the first legal skirmish in that lawsuit. It has the immediate effect of sending Acosta back to the White House, pending further arguments and a possible trial. The litigation is in its early stages, and a trial could be months in the future.
- The ruling is a surprise. For me, it calls to mind once again my favorite Clarence Darrow quote, that “In order for there to be enough liberty, it is necessary that there be too much.” Apparently the judge, as courts have in other First Amendment cases, decided to leave a wide margin of safety around a constitutional right rather than interpret it narrowly, even reasonably narrowly.
I understand and sympathize with that instinct, and perhaps it is the right one.
- Judge Kelly’s opinion insisted that there be some basic procedural protections, requiring the White House to state clearly the grounds for revoking the clearance. The Court did not find an express violation of the First Amendment and Acosta might still be barred from the White House following appropriate due process. Kelly said his ruling was “limited” and temporary until a more detailed explanation and sufficient notice by the White House was established. (Not surprisingly, the White House viewed a tweet as notice enough.)
- So a vague, traditional but unstated standard of not acting like an entitled jackass during a press conference and debating the President rather than asking questions while refusing to yield the floor is not, absent written standards and procedures, enough to get an unprofessional jerk like Jim Acosta banned. Got it. It would be nice if previously acknowledged standards of basic respect for the office and the relative roles of the professionals involved were enough to avoid this kind of controversy, but apparently not.
Reflect on this episode the next time CNN or a pundit fusses about President Trump “defying established norms.”
- Professor Turley writes: “Once again, I fail to see why this Administration just stumbles into these fights and undermines its own case by failing to lay a proper foundation. In the end, the court indicated that [the White House] would bear a burden under the first amendment in excluding individual journalists. It is difficult to predict how the court would rule on a proper record since the White House failed to create one – much as it did in the first rendition of the travel ban.” Oh, I can see why this keeps happening, and I bet the professor can too. That’s how Trump rolls, and so his administration rolls that way too. He doesn’t do “process” or “foundation” unless someone forces him to.
Yes, it’s incompetent, and yes, it’s infuriating, and no, it will never, ever change. “Fish gotta swim, birds gotta fly…”
- Also from Turley: “[T]his could be an example of a bad case making bad law if it goes to the merits. On the media side, a ruling against CNN could radically curtail the rights of journalists vis-vis the White House. Conversely, a ruling against the White House could significantly curtail the power to control access and conduct in the White House. Given those dangers, this would be a good stage to simply resolve the case with a stern warning and resumption of access for Acosta.”
I presume he means a stern warning to its hack employee from CNN. Fat chance. As long as the network encourages and endorses Acosta’s anti-Trump grandstanding, his incivility and misconduct will continue.
- Kelly is one of those federal judges appointed by President Trump who, we have been told, will just rubber-stamp his fascist policies until we are all goose-stepping along.