WASHINGTON — The Trump administration says that it was well within its discretion in revoking CNN White House correspondent Jim Acosta’s hard pass, rejecting the network’s effort to obtain an order to have the credentials immediately restored.
“The stated rationale for the revocation of Mr. Acosta’s pass — that he was disrupting press proceedings — is evident from the video he has proffered, is entirely viewpoint — and content-neutral, and clears this limited bar,” the administration’s attorneys wrote in a filing on Wednesday morning.
A federal judge has scheduled a hearing in U.S. District Court in Washington on Wednesday afternoon. CNN is asking for a temporary restraining order and a preliminary injunction. Since the network filed the lawsuit, which may have tremendous implications for journalists’ access to the White House, other news organizations have made statements or filed briefs in support, including Fox News.
The brief filed by the administration was on behalf of the defendants in the case, including President Donald Trump, Chief of Staff John Kelly, Press Secretary Sarah Huckabee Sanders, the Secret Service, its director Randolph Alles, and an unnamed agent.
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“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,” the administration argued in its brief. It was filed by Joseph H. Hunt, the assistant attorney general; James Burnham, the deputy assistant attorney general; and Eric Womack, the assistant branch director.
The brief said that Acosta’s credentials were revoked for “disrupting press proceedings,” but it does not make mention of what Sanders said at the time, that he had placed his hands on a White House intern as she attempted to get a microphone from him. Acosta called that claim a “lie,” and video of the incident shows one of his hand inadvertently touching the intern’s arm.
Sanders did not cite that claim in response to CNN’s lawsuit on Tuesday. She said that Acosta “held on to the microphone” after the White House staffer had put her hands on the microphone and attempted to reclaim it.
The administration also argued that there was no sense of urgency to warrant a temporary restraining order.
They write that “even if Plaintiffs could show First Amendment harm in the abstract, they cite no critical event expected in the next several weeks that requires immediate judicial intervention pending expedited preliminary injunction briefing. 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 brief cites the Supreme Court decision in Citizens United in arguing that the press “does not receive special treatment for First Amendment purposes.”
“A rule that limits the White House’s discretion to grant or deny journalists’ hard passes would thus risk requiring the White House to grant full access to any member of the public who would like to ask the president or his staff questions,” the Trump administration stated.
One of the cases that CNN cites as precedent is a 1977 D.C. Circuit decision that held that a reporter for The Nation, Robert Sherrill, should have been given notice by the Secret Service for the reasons that his application for a hard pass was denied. In the decision, the judges wrote that access should “not be denied arbitrarily or for less than compelling reasons.”
The Trump administration, however, said that the Sherrill decision was not so broad, and had to do only with the Secret Service’s determination on whether to grant access. The White House press office, they noted, also has discretion, and looks at the degree to which “the requester’s beat requires reporting on the White House, whether a requester is a journalist with a sufficiently broad audience, and whether hard passes are fairly distributed between comparable organizations.”
The administration said that even if the judge reads the Sherrill decision as meaning that the Secret Service and the White House had to have a “compelling reason” to revoke the pass, they have one. At the Nov. 7 press conference, Acosta refused to stop speaking even as Trump tried to move on to a different reporter. “Even after the staffer actually had her hands on the microphone, Mr. Acosta continued his refusal to permit another journalist to ask a question, ignoring both the stated wishes of the president and the efforts of a staffer tasked with helping to manage the event.”