The White House asserts that it can pick and choose which journalists are given a permanent pass to cover it, according to a court filing by the Justice Department on Wednesday.
The filing was the government’s legal response to CNN and Jim Acosta’s lawsuit over the recent suspension of Acosta’s press pass.
Tuesday’s lawsuit against President Trump and several of his top aides alleged that the ban violates CNN and Acosta’s First and Fifth Amendment rights.
Most of the country’s major news organizations have sided with CNN through statements and plan to file friend-of-the-court briefs.
But the Trump administration, in a sharp break with decades of tradition, is asserting that it has “broad discretion” to limit reporter access to White House buildings and events.
“The President and White House possess the same broad discretion to regulate access to the White House for journalists (and other members of the public) that they possess to select which journalists receive interviews, or which journalists they acknowledge at press conferences,” lawyers say in the filing.
Historically both Republican and Democratic administrations have had a permissive approach to press access, providing credentials both to big news organizations like CNN and obscure and fringe outlets.
Acosta’s suspension – which took effect one week ago – is an unprecedented step. Journalism advocates say it could have a chilling effect on news coverage.
“If the press is not free to cover the news because its reporter is unjustly denied access, it is not free,” former White House correspondent Sam Donaldson said in a court declaration supporting CNN on Tuesday. “And if denying access to a reporter an organization has chosen to represent it – in effect asserting the president’s right to take that choice away from a news organization and make it himself – is permitted, then the press is not free.”
Judge Timothy J. Kelly, a Trump appointee, has scheduled a hearing for Wednesday at 3:30 p.m.
CNN and Acosta are asking Kelly for a temporary restraining order and a preliminary injunction that would restore his access right away.
Lawyers for CNN and Acosta are arguing that time is of the essence because his rights are violated every day his pass is suspended.
They are also seeking a declaration that Trump’s action was “unconstitutional, in violation of the First Amendment and the Due Process Clause of the Fifth Amendment.” This could protect other reporters against similar actions in the future.
The government’s filing quotes a tweet by White House Press Secretary Sarah Sanders in which she announced the suspension of Acosta’s pass by saying his “conduct is absolutely unacceptable.”
The “conduct” mentioned by Sanders in the tweet that the government lawyers cite actually refers to a false and since-dropped argument that Sanders had made in the aftermath of the press conference — that Acosta was “placing his hands on a young woman just trying to do her job as a White House intern.”
The administration has backed away from that argument in recent days, and it makes no appearance in the government’s first legal comment on the case Wednesday. Even when the filing directly quotes Sanders’ tweets, it leaves out that part.
Instead, the White House is complaining about Acosta’s aggressive style. In an interview with The Daily Caller, a conservative website, on Wednesday, Trump called Acosta “bad for the country,” depicting him as “just an average guy who’s a grandstander who’s got the guts to stand up and shout.”
Trump called on Acosta at last week’s post-midterms press conference. The two men had a combative exchange. When Trump called on someone else, Acosta held onto a microphone and asked another question. Trump responded, and Acosta handed off the mic.
Later in the day, Acosta returned to the White House and was told to hand in his Secret Service “hard pass.” Sanders, around the same time, announced his suspension.
CNN is alleging that this abrupt action violated due process rights. But the government’s lawyers said in Wednesday’s filing that the back and forth between Trump and Acosta, during which Trump strongly criticized Acosta, qualified as due process. They also cite Sanders’ statement the night of that press conference as “notice of the factual bases for denial.”
“The President had similarly criticized Mr. Acosta’s conduct during that press conference, which complemented Ms. Sanders’ notice,” the government argued.
The government also claimed that CNN can’t be harmed by the banning of one of its journalists, arguing 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.”
CNN has rejected that assertion. So has the White House Correspondents’ Association. The group said Tuesday that the president “should not be in the business of arbitrarily picking the men and women who cover him.”
“This is a very, very important case,” Ted Olson said. Olson, a Republican heavyweight who successfully argued for George W. Bush in Bush v. Gore, is representing CNN along with another prominent outside attorney, Theodore Boutrous, and the network’s chief counsel, David Vigilante.
Olson said Tuesday that it was Acosta whose press pass was suspended this time, but “this could happen to any journalist by any politician.”
He spoke forcefully against Trump’s action. “The White House cannot get away with this,” he said in an interview with CNN anchor Brooke Baldwin.
CNN’s lawyers say the case hinges on Acosta and CNN’s First Amendment rights; the shifting rationales behind the ban; and the administration’s failure to follow the federal regulations that pertain to press passes, an alleged violation of Fifth Amendment rights. The lawsuit asserts that this ban is really about Trump’s dislike of Acosta.
The “reasonable inference from defendants’ conduct is that they have revoked Acosta’s credentials as a form of content- and viewpoint-based discrimination and in retaliation for plaintiffs’ exercise of protected First Amendment activity,” CNN’s lawsuit alleges.
Many media law experts, unaffiliated with CNN, believe the network has a very strong case.
Judge Andrew Napolitano, the top legal analyst on Trump’s favorite network, Fox News, said the same thing on Tuesday. “I think this will be resolved quickly,” he said, adding “I think it will either be settled or CNN will prevail on motion.”
If there is no settlement, CNN is requesting a jury trial.
In an interview with Wolf Blitzer, Boutrous said the government officials are being sued in their “official capacity,” but “there is a possibility of damages claims,” which would mean suing them personally.
Blitzer pointed out that the officials would have to “go out and hire their own attorneys.”
It is incredibly rare to see a news organization suing a president.
More than a dozen news outlets – from the Associated Press to USA Today, The Washington Post to Fox News – have publicly expressed support for the effort.
Meanwhile, the Trump campaign is trying to capitalize on the lawsuit. On Wednesday it sent out an emailed survey to potential donors that asked recipients if they think the ban on Acosta was justified. The email’s subject line was, “CNN SUES! Help Trump win.”