On November 7, 2018, CNN’s Jim Acosta refused to relinquish a White House microphone, and physically prevented a White House intern from retrieving the microphone by blocking her with his arm.

The White House then suspended Acosta’s “hard pass,” the press pass that allowed him priority access to White House grounds.

https://youtu.be/4BZ8ck_7cqk?t=90

The media jumped to Acosta’s defense, claiming the video posted by Sarah Sanders showing Acosta getting physical with the intern was doctored. It was not. The video shows Acosta using his hand and arm to prevent the intern from getting the microphone, and the versions circulated showing the incident in slow motion, close up, and in portions speeded up, were the type of formatting commonly done and obvious to anyone watching.

Now CNN and Acosta have sued. The Complaint (pdf.)(full embed at bottom of post) names Trump, John F. Kelly, William Shine, Sarah Huckabee Sanders, the
United States Secret Service, Randolph Alles, and John Doe (an unnamed Secret Service agent).

CNN issued this statement:

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.

CNN and Acosta attempt to portray the suspension as a reaction to the “content” of Acosta’s reporting:

2. But on November 7, 2018, Defendants revoked Acosta’s White House credentials because, in the President’s own words, Acosta failed to “treat the White House with respect” at a White House press briefing. This severe and unprecedented punishment is the culmination of years of hostility by President Trump against CNN and Acosta based on the contents of their reporting—an unabashed attempt to censor the press and exclude reporters from the White House
who challenge and dispute the President’s point of view.

That plainly is a false accusation. Acosta has been a showman and loudmouth for years at these press briefings. He only lost his pass when he got physical with an intern and refused to relinquish the microphone.

What Acosta is complaining about is the loss of his privileged access to the White House:

24. The hard pass is essential in large part because it allows immediate access to White House grounds and its press offices. A hard pass thus lets a reporter react to fast-developing, important news stories. Without a hard pass, a reporter may well miss the newsworthy events, particularly including the many notable events that occur with little notice. A hard pass is effectively required to be a White House correspondent for a national news organization such as CNN.

25. Without a hard pass, a reporter must ask for advance approval each time he wishes to enter the White House. Such access often needs to be requested at least 24 hours in advance. Since many White House news events, briefings, or appearances are frequently announced day-of, reporters without a hard pass are often effectively unable to cover these events. Further, the White House may decline to admit a reporter requesting daily access. Even if admitted, the reporter must wait in a security line with the general public and be screened before entering the White House and then be escorted by security around the press offices. Without a hard pass, a White House correspondent simply cannot do his job.

As of this initial posting, the court papers are not available on PACER, but CNN indicated in it’s announcement that it was seeking a restraining order.

In announcing the lawsuit, CNN’s Brian Stetler wrote:

As the prospect of a lawsuit loomed on Sunday, attorney Floyd Abrams, one of the country’s most respected First Amendment lawyers, said the relevant precedent is a 1977 ruling in favor of Robert Sherrill, a muckraking journalist who was denied access to the White House in 1966.

Eleven years later, a D.C. Court of Appeals judge ruled that the Secret Service had to establish “narrow and specific” standards for judging applicants. In practice, the key question is whether the applicant would pose a threat to the president.

The code of federal regulations states that “in granting or denying a request for a security clearance made in response to an application for a White House press pass, officials of the Secret Service will 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.”

There are other guidelines as well. Abrams said the case law specifies that before a press pass is denied, “you have to have notice, you have to have a chance to respond, and you have to have a written opinion by the White House as to what it’s doing and why, so the courts can examine it.”

I discussed the case cited by Abrams (Sherrill v. Knight) and other factors just yesterday on the Jack Riccardi Show on KTSA San Antonio (direct audio link here):

Mark Levin posted this reaction:

I just read CNN’s lawsuit against the administration over Jim Acosta. It’s a very weak case, but if they get before an Obama or Clinton district judge, who knows. CNN hired Ted Olson’s firm, and he has signed onto the lawsuit. Olson was hired for a few reasons: 1. As a former Reagan official and lawyer for Bush in Bush-Gore, CNN hopes to make the PR case that this a bipartisan matter; 2. CNN hopes to make the PR case that it is upholding the Constitution against a rogue administration; and, 3. CNN has employed a top Supreme Court litigator.

Nonetheless, it is a ridiculous suit. CNN still has reporters at the White House and in the presidential press conferences; Acosta does not have a constitutional right to be physically present in the press room, anymore than the scores of media outlets that do not; Acosta can watch the press conference from outside the White House grounds as they are televised; the president cannot be compelled by any court to actually call on any particular reporter during a press conference; Acosta does not have a constitutional right to disrupt the press conference with his various antics anymore than any other reporter; and, a president is not constitutionally compelled to hold a presidential press conference. The courts should stay out of this on separation of powers grounds, among other things. No one is preventing Acosta from reporting or CNN from broadcasting.

MORE TO FOLLOW (POST UPDATED MULTIPLE TIMES)

UPDATES:

The case is assigned to Judge Timothy Kelly, who was appointed by Trump and confirmed without Democrat opposition. He previously ruled in favor of the Trump administration in the suit over who would head the Consumer Financial Protection Bureau, after an Obama holdover tried to prevent Mick Mulvaney from taking control.

The Motion for Temporary Restraining Order (pdf.)(full embed below) seeks an emergency hearing today or tomorrow.

AND

Additional Exhibits to the Motion for TRO (pdf.) and Motion for Preliminary Injunction (pdf.) are now on PACER, and fully embedded at the bottom of this post.

AND

The Judge has scheduled a hearing for Tuesday afternoon:

11/13/2018 MINUTE ORDER: It is hereby ORDERED that Defendants shall file any response to Plaintiffs’ 2 Motion for a Temporary Restraining Order by 11:00 a.m. on November 14, 2018. Defendants shall also file their opposition, if any, to the Reporters Committee for Freedom of the Press’s 6 Motion for Leave to File Amicus Curiae Brief by that time. It is further ORDERED that a hearing on Plaintiffs’ 2 Motion for a Temporary Restraining Order will be held at 3:30 p.m. on November 14, 2018, in Courtroom 28A. Signed by Judge Timothy J. Kelly on 11/13/2018. (lctjk3) (Entered: 11/13/2018)

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CNN and Acosta v. Trump – Complaint by Legal Insurrection on Scribd

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CNN and Acosta v. Trump – Motion for Temporary Restraining Order by Legal Insurrection on Scribd

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CNN and Acosta v. Trump – Motion for Temporary Restraining Order – Additional Exhibits by Legal Insurrection on Scribd

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CNN and Acosta v. Trump – Motion for Preliminary Injunction by Legal Insurrection on Scribd