White House gives up on denying Acosta's press pass, drafts new "single question only" rule for reporters

Somewhere right now at CNN HQ, Acosta is reading the new rules and thinking, “It doesn’t say anything about one question in 11 discrete parts.”

I wonder which White House or DOJ lawyer got to break the news to POTUS that they were unlikely to win this battle in court and that it’d be smarter to cut their losses now and declare victory.

“Having received a formal reply from your counsel to our letter of November 16, we have made a final determination in this process: your hard pass is restored,” the White House said in a new letter to Acosta. “Should you refuse to follow these rules in the future, we will take action in accordance with the rules set forth above. The President is aware of this decision and concurs.”

The letter detailed several new rules for reporter conduct at presidential press conferences, including “a single question” from each journalist. Follow-ups will only be permitted “at the discretion of the President or other White House officials.”

From the letter:

Why’d the White House back down when it looked this morning like they were planning to fight on? Well, they were up against a hard deadline today: After granting the TRO to Acosta on Friday, Judge Timothy Kelly wanted a “status report” from both parties about how to resolve the matter by 3 p.m. (He extended the timeline to 6 p.m. after a request by the DOJ.) The White House tried to solve the due process problem identified by Kelly in Friday’s ruling by sending Acosta a new letter notifying him why his pass was revoked. You can’t give notice after taking official action, though; due process typically requires giving the person being targeted a chance to make his case before the government acts. The time for Trump to consult with lawyers about how to kick Acosta out and make it stick was before he gave the order, not now. With CNN vowing to sue on and the government’s remedy imperfect, the White House decided to spare itself the embarrassment of another loss in Kelly’s court.

No biggie. How long will it take Acosta to violate the newly promulgated rules the next time he’s called on? Fifteen seconds? Trump will get his chance at a rematch.

I want to note something about the focus on due process in Acosta’s matter over the last few days, though. Kelly relied on the D.C. Circuit’s ruling in the Sherrill case from 1977 in issuing his order on Friday. The key paragraphs from the Sherrill opinion:

[W]e are presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press … requires that this access not be denied arbitrarily or for less than compelling reasons…. Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information…

In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment.

Kelly himself emphasized on Friday that he wasn’t ruling on the First Amendment issue (yet), only the due process issue, so it’s understandable that people would focus on that part of it. But I think some have extrapolated from that that if the White House were to give Acosta proper due process — advance written notice as to why his pass was revoked, a chance to respond, yadda yadda — then they could take his pass away. Not so. There are two elements in Sherrill as I read it, due process and a “compelling” reason for revoking the pass. Gotta have both. After all, the government couldn’t lawfully revoke your right to post on the Internet by simply sending you a letter beforehand explaining its intention to do so. Your First Amendment right to post is a substantive right; it can’t be revoked unless the state can show some compelling reason for revoking it, no matter how much process the government gives you. Since Kelly was following Sherrill, there’s every reason to believe that the White House would have lost even if it had dotted its I’s and crossed its T’s on notifying Acosta beforehand that his pass was about to disappear. Kelly would have found, I think, that Acosta’s habit of talking over people at a press conference simply isn’t a “compelling” enough reason to ban him from the grounds entirely. For that, you’d probably need to show that he’s a security risk and can’t be trusted to be anywhere in proximity to the president. The remedy for his shenanigans is not calling on him or ending the briefing if he interrupts, not yanking his pass away.

Remember, though, for all the huffing and puffing about Friday’s ruling, Trump retains total discretion over whom he and his deputies speak to. He could defeat the entire purpose of press passes by canceling press briefings indefinitely. Which, considering how rarely briefings are held anymore, is what they’ve already basically done.

David Strom 6:41 PM on September 26, 2022