This should be a real ratings winner for both sides, right? CNN followed up on its threat to take the White House to court over Jim Acosta’s expulsion, filing a lawsuit this morning in federal court. CNN wants a temporary injunction that allows Acosta back into the briefing room, and then “permanent relief” to make sure he can stay there:
CNN filed a lawsuit against the Trump Administration this morning in DC District Court. It demands the return of the White House credentials of CNN’s Chief White House correspondent, Jim Acosta. The wrongful revocation of these credentials violates CNN and Acosta’s First Amendment rights of freedom of the press, and their Fifth Amendment rights to due process. We have asked this court for an immediate restraining order requiring the pass be returned to Jim, and will seek permanent relief as part of this process. While the suit is specific to CNN and Acosta, this could have happened to anyone. If left unchallenged, the actions of the White House would create a dangerous chilling effect for any journalist who covers our elected officials.
The complaint itself insists that the “hard pass” is required for regularly assigned beat reporters to do their jobs, which is indisputable. The complaint then argues that this requires the White House to provide them to the reporters that media outlets assign for that job, which is somewhat less indisputable. It might be good policy for the White House to do so, and in fact it is good policy, lest an administration turn access into a commodity. But good policy does not always have a federal law dictating it either, and so a federal judge might not have much standing to order the White House to give CNN that access, and perhaps especially not for Jim Acosta specifically.
It does make a good point about the limitations of the Secret Service in assessing security clearances:
Generally, the Secret Service may grant or deny a request for a security clearance made in connection with an application for a White House press pass. 31 C.F.R. § 409.1. However, the Secret Service’s discretion is expressly limited. Secret Service officials making that decision must “be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or the family of the President so serious as to justify his or her exclusion from White House press privileges.” Id. In applying that standard, the Special Agent in Charge of the Secret Service, Technical Security Division must apply designated procedures governing notices, responses, and hearings regarding decisions about applications.
That might be true, but it also might not be germane. The White House made it clear that the administration didn’t like what Acosta did during the November 7th press conference and that they were revoking the press pass themselves. Their reason was that Acosta “laid hands” on an intern, which is ridiculous hyperbole, but ridiculous hyperbole doesn’t violate federal law, either. The complaint goes into great detail in refuting this charge, but in the end it doesn’t really matter. If the White House revoked his hard pass on the basis of refusing to give up the microphone when asked, it would have been more defensible, but CNN would still have filed this lawsuit nonetheless.
It’s very difficult to see how revoking Acosta’s hard pass “violates the First Amendment,” as this complaint alleges as its first cause of action, even if one thinks the revocation was a dumb move or overreaction. CNN could have assigned another reporter to the beat and gotten him or her a “hard pass.” It’s understandable why they don’t want to do that — they’d be seen as caving to the Trump administration — but that doesn’t rise to the level of infringing on the right to free speech and freedom of the press. The latter doesn’t mean “reporters get to act out and self-promote without consequences,” and that’s precisely what Acosta’s been doing for a long time. (Even some of his colleagues agree on that point.) Nor is there really a Fifth Amendment claim to due process, as revocation of a hard pass is neither a criminal nor regulatory process. The White House has the right to determine the conditions for access to its facilities and events, even if they do so with their own motives in mind.
Of course, a federal judge might decide to take some action anyway, but even if an injunction gets issued, don’t expect to see Acosta back in action at the White House immediately. The White House would immediately appeal any such decision, as will CNN if they get denied. This show might go all the way to the Supreme Court, which will delight the reality-TV-drenched players on both sides of this case to no end.
Update: The White House Correspondents Association’s president, Olivier Knox, issued a statement strongly supporting “CNN’s goal” in the lawsuit:
MORE: White House Correspondents' Association "strongly supports CNN’s goal of seeing their correspondent regain a US Secret Service security credential that the White House should not have taken away in the first place," WHCA president says. https://t.co/3zks8kB20A pic.twitter.com/SiuHwu82FS
— ABC News (@ABC) November 13, 2018
That’s largely correct as a matter of policy and public good, and the White House is wide open to criticism on this point. However, it’s still far from clear that CNN can sue Jim Acosta back into access to the White House, and that might be why Knox is supporting CNN’s “goal” here.
Update: The White House has responded by noting that CNN has dozens of people with hard passes, and by skewering Acosta’s narcissism:
In response to CNN lawsuit, White House says "this is just more grandstanding from CNN, and we will vigorously defend against this lawsuit," and provides a defense of its decision to revoke Jim Acosta's press pass. https://t.co/i0VEal8B3Z pic.twitter.com/iew3izeAq4
— NBC News (@NBCNews) November 13, 2018
Note, though, that this statement dispenses with the “laid hands” allegation. Instead, as I suggested, they have rethought their rationale to focus on Acosta’s refusal to cooperate with the White House on orderly briefings. Those arguments are likely to hold up better in the courtroom.