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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,” 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 advocacy groups say it could have a chilling effect on news coverage.
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 and 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.
The government’s lawyers said in Wednesday’s filing that the back and forth between President Trump and Acosta during last week’s press conference, during which Trump strongly criticized Acosta, qualifies 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 is expected to respond later on Wednesday.
“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.
Tuesday’s lawsuit rejected the White House’s claim that Acosta acted inappropriately at a press conference last week. The suit says this 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.
Other news organizations are now standing with CNN. In a statement Wednesday, The Associated Press, Bloomberg, First Look Media, Fox News, Gannett, NBC News, The New York Times, Politico, USA Today and The Washington Post, among others, said, “Whether the news of the day concerns national security, the economy, or the environment, reporters covering the White House must remain free to ask questions. It is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons. Our news organizations support the fundamental constitutional right to question this President, or any President. We will be filing friend-of-the-court briefs to support CNN’s and Jim Acosta’s lawsuit based on these principles.”
Fred Ryan, the publisher and CEO of the Washington Post, separately expressed his support for the action Tuesday night. “We support CNN in its effort to restore the press credentials of its White House reporter,” Ryan said. “It is a journalist’s role to ask hard questions, hold the powerful to account and provide readers with as much information as possible.”
The White House Correspondents’ Association is also backing CNN. The group said Tuesday that the president “should not be in the business of arbitrarily picking the men and women who cover him.”
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