Judge Rules In Favor Of CNN, Temporarily Restores Correspondent's Credential | Connecticut Public Radio
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Judge Rules In Favor Of CNN, Temporarily Restores Correspondent's Credential

Nov 16, 2018
Originally published on November 17, 2018 4:05 pm

Updated Saturday at 4:00 p.m. ET

A federal judge in Washington, D.C., delivered a decisive blow to President Trump Friday, ruling in favor of CNN and the news media.

Judge Timothy Kelly, a Trump appointee, ordered the White House to restore correspondent Jim Acosta's press credentials, something the White House said later it would do.

"Each day he [Acosta] is deprived ... [he] suffers a harm that cannot be remedied in retrospect," Kelly said. And he suggested that if the White House wants to strip reporters of their credentials, it will have to adopt neutral standards of behavior that if violated would justify revocation.

Judge Kelly said that the White House, having granted access to reporters for decades, cannot take that right away without the due process of law guaranteed by the Constitution. In this case, the judge said, whatever process occurred was "shrouded in mystery." Indeed, he said that Trump lawyers could not even say who made the initial decision to revoke Acosta's pass.

To revoke a press pass, said Kelly, the White House would have to notify a reporter, give him or her a chance to challenge the decision, and provide a written justification.

In this case, the judge observed, none of that happened. Instead, in seeking to explain Acosta's pass revocation, the White House put out a justification that the judge said is "likely untrue" — namely that Acosta had laid hands on a White House intern at the news conference when she sought to take the microphone from him.

Acosta, for his part, spoke outside the D.C. courthouse after the ruling.

"I want to thank all of my colleagues in the press who supported us this week," he said, adding, "Let's get back to work."

Friday's action is not the end of the road in this fight, however. The judge's order is only temporary, unless CNN and the White House agree to settle the case out of court (a distinct possibility).

At the White House, Trump told reporters, "We're writing up rules and regulations. ... We have to practice decorum. We want total freedom of the press. ... We're setting up a certain standard, which is what the court is requesting."

If reporters don't follow the rules, Trump said, "we'll end up back in court and we'll win. But more importantly, we'll just leave, and then you won't be very happy because we do get good ratings."

First Amendment lawyers say any rule the White House comes up with must be neutral in its content and must apply the same way to everyone.

Some rules are a good idea, says Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University. For example, rules to prevent disruption at a press conference. But Jaffer does not see the reporters being disruptive.

Rather, in this case, he says, the revocation "was principally the result of the content of Jim Acosta's question, which apparently provoked the president." The First Amendment, he maintains, protects reporters' rights to ask provocative questions. "That's the whole point of the First Amendment — to allow reporters and others to hold government officials to account."

Ari Fleischer, who served as press secretary for former President George W. Bush, says the "best way" to come up with standards for White House correspondents would be to do it jointly with the press corps, through the White House Correspondents' Association. That way it's not the government trying to "dictate" reporters' behavior. But he suspects that because of the hostility between the president and the press corps, Trump will try to do it "by fiat."

"The press corps is anarchistic, and the president loves to frolic in the anarchy," Fleischer observes. "It's part of him. He loves mixing it up with the press corps; he loves the back and forth; he loves the pugilistic fight."

The press corps, in turn, says Fleischer, loves the access. Fleischer believes Acosta went too far, however, in asking four questions. The limit, he contends, should be two.

"In fact, if I were the White House," he adds, "I would announce — when they do their new regulations and rules — I would call it the Acosta Rule."

Trump has gone so far as to call journalists the "enemy of the people" and, at his rallies, crowds frequently break into chants of "CNN Sucks" as he routinely brands as "fake news" any coverage he deems unflattering.

In particular, he has been enraged at the media for not giving him more positive coverage after winning the 2016 presidential election.

"The press treats me terribly," he told Lesley Stahl on CBS's 60 Minutes. "I thought very strongly that, you know, the one great thing will happen is the press will start treating me great [once he won the presidency]. Lesley, they treat me worse. They got worse instead of better. Very dishonest. ... I regret that the press treats me so badly."

A group of more than 40 news organizations, including NPR, issued a joint statement Friday night in response to the ruling. "We applaud Judge Kelly's careful application of the law to reject the White House's claim of unbridled authority over journalists' access to the White House. Our democracy depends on reporters having access to, and being able to question, government officials," the statement said.

Copyright 2018 NPR. To see more, visit https://www.npr.org.

ARI SHAPIRO, HOST:

A federal judge delivered a decisive blow to President Trump today, ruling in favor of CNN and the news media. Judge Timothy Kelly, a Trump appointee, ordered the White House to restore the press pass of CNN White House correspondent Jim Acosta, something the White House later did. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Judge Kelly said that the White House, having granted access to reporters for decades, cannot take that right away without due process of law. And in this case, the judge said whatever process there was was shrouded in mystery. Indeed, he said, the Trump lawyers could not even say who made the initial decision to revoke Acosta's pass. In order to revoke a pass, said Kelly, the White House would have to notify the reporter, give him or her a chance to challenge the decision and provide a written justification.

In this case, the judge observed none of that happened. Indeed, in seeking to explain Acosta's pass revocation, the White House put out a justification that the judge said is, quote, "likely untrue," namely that Acosta had laid hands on a White House press aide at the press conference when she sought to take the microphone from him. Outside the federal courthouse, Acosta made a brief statement.

(SOUNDBITE OF ARCHIVED RECORDING)

JIM ACOSTA: I want to thank all of my colleagues in the press who supported us this week. And I want to thank the judge for the decision he made today. And let's go back to work.

TOTENBERG: But the fight over his press pass is not over yet. The pass restoration is temporary, and the case is now scheduled to continue unless the White House and CNN can reach an out-of-court settlement, a distinct possibility. The judge did recognize that the White House has the right to set standards for correspondents' behavior, which president Trump said he would do.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: They don't listen to the rules and regulations, we'll end up back in court, and we'll win. But more importantly, we'll just leave. And then you won't be very happy 'cause we do get good ratings.

TOTENBERG: What kinds of rules does he anticipate?

(SOUNDBITE OF ARCHIVED RECORDING)

TRUMP: Decorum. You can't take three questions and four questions and just stand up and not sit down.

TOTENBERG: First Amendment lawyers say any rule the White House comes up with must be neutral in its content and must apply the same way to everyone. Some rules are a good idea, says Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University - for example, rules to prevent disruption at a press conference.

JAMEEL JAFFER: That said, I'm not sure that problem exists right now. I don't see reporters being disruptive. The disruption that the White House was focused on here I think was principally the result of the content of Jim Acosta's question, which apparently provoked the president. And the First Amendment allows reporters, protects reporters' right to ask questions that provoke the president. That's the whole point of the First Amendment.

TOTENBERG: Ari Fleischer, who served as press secretary for President George W. Bush, says the best way to come up with standards would be to do it with the press corps, the White House Correspondents' Association. That way it's not the government trying to dictate reporters' behavior. But he suspects that because of the hostility between the president and the press corps, that Trump will try to do it by fiat.

ARI FLEISCHER: The press corps is anarchistic, and the president loves to frolic in the anarchy. It's a part of him. He loves mixing it up with the press corps. He loves the back-and-forth. He loves the pugilistic fight.

TOTENBERG: And the press corps in turn, says Fleischer, loves the access. Fleischer believes Acosta went too far, however, in asking four questions. The limit, he says, should be two.

FLEISCHER: If I were the White House, I would announce when they do their new regulations and rules - I would call it the Acosta rule.

TOTENBERG: Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF ORGONE'S "RONIN") Transcript provided by NPR, Copyright NPR.