In TRO ruling the Court required Acosta receive due process, the White House is providing him with a process: “we have made a preliminary decision to suspend your hard pass due to your conduct at the President’s November 7, 2018 press conference …. we would be pleased to consider any material you would like to submit in response to it.”
Jim Acosta and CNN were granted a Temporary Restraining Order on Friday, November 16, 2018, restoring Acosta’s White House “hard pass,” to allow him privileged access to the White House grounds for press briefings and other events, pending further court action.
The White House promptly announced that it would promulgate rules governing press conduct and discipline, to address the court’s concern that Acosta was not afforded due process.
So because the plaintiffs have shown a likelihood that the government has violated Mr. Acosta’s Fifth Amendment rights under Sherrill, because the type of injury he has suffered is irreparable and because the public interest in the balance of equities favor granting a temporary restraining order, I will grant the application for a — for the temporary restraining order here. I will order the defendants immediately restore Mr. Acosta’s hard pass until further order of the Court or the restraining order expires. And if, at some point after restoring the hard pass, the Government would like to move to vacate the restraining order on the grounds that it has fulfilled its due process obligations, then it may, of course, do so and I will promptly address that and then the remaining bases for the TRO.
I want to emphasize the very limited nature of today’s ruling. In resolving this TRO, I haven’t — because I’ve found that it must be granted on — as to the due process claim, I haven’t had to reach the plaintiffs’ First Amendment claim at all in which they alleged that the government engaged in viewpoint or content discrimination. So I want to make very clear a couple of things. I have not determined that the First Amendment was violated here; I have not determined what legal standard would apply to the First Amendment claim here; I have not determined the specific nature of the First Amendment interest that Sherrill recognizes — or that Sherrill at least doesn’t describe but recognizes, yes; and I haven’t determined what portions of Sherrill, if any, would bind me on those questions.
The court required the parties to files status reports by noon today as to how they wished to proceed with the next stage, the request for preliminary and permanent injunctions.
Acosta and CNN have filed an Emergency Status Report (pdf.)(full embed at bottom of post) with the court seeking expedited hearing of the motion for a preliminary injunction, stating that the White House has threatened to revoke Acosta’s hard pass again. The Decision Transcript (pdf.)(full embed at bottom of post) was filed as an exhibit to the tion, the first time the transcript has been publicly available.
In the Status Report, Acosta and CNN say that the White House has threatened again to revoke Acosta’s hard pass:
Following this Court’s TRO decision, Plaintiffs offered to resolve this dispute amicably by working with Defendants and the White House Correspondents ‘ Association to establish protocols for White House press conferences on a going forward basis. Defendants did not respond to this offer to cooperate; instead, after 9 p.m. on Friday, just hours after this Court’s order requiring the restoration of Acosta’s White House press pass, Defendants Sarah Huckabee Sanders and William Shine sent the attached letter, stating, among other things, that they had made the “preliminary decision to suspend [Acosta’s] hard pass due to [his] onduct at the President’s November 7, 2018 press conference.” Ex. 58 at 1. They demanded a response by 5 :00 p.m. on Sunday and arbitrarily set a deadline of 3 :00 p.m. Monday for their determination as to whether the “preliminary decision” becomes “final.” Ex. 5 8 at 1.
In response, as set forth in the attached letter, Plaintiffs objected to Defendant’s attempt to provide retroactive due process, and have requested that Defendants refrain from – yet again – violating the constitutional rights of CNN and Acosta. Ex. 59.
Plaintiffs remain hopeful that the parties can resolve this dispute without further court intervention. But in light of Defendants’ stated intentions, Plaintiffs respectfully request that the Court enter an order requiring Defendants to file their opposition to Plaintiffs’ motion for a preliminary injunction on Tuesday, November 20, 2018, as required by Local Rule 65 .l(c), with Plaintiffs’ reply due Tuesday, November 27, 2018, or according to an expedited schedule the Court deems appropriate. Plaintiffs further request that the Court schedule a hearing on the motion for the week of November 26, 2018, or as soon thereafter as possible. Finally, Plaintiffs respectfully suggest, in response to the Court’s inquiry, that briefing on the merits and the preliminary injunction should not be combined, as discovery may be necessary to resolve Plaintiffs’ claims.
Here is the letter referenced in the Emergency Status Report, which reads:
We are writing to give you formal written notice that we have made a preliminary decision to suspend your hard pass due to your conduct at the President’s November 7, 2018 press conference. The President is aware of this preliminary decision and concurs. The factual basis for this preliminary decision to suspend your pass is as follows:
As you know, President Trump has provided an extraordinary amount of access to journalists to ask questions, while operating an extremely open and transparent White House. The White House does not have a written code of conduct for journalists participating in presidential press conferences. We had not previously thought that a set of formal rules for journalists’ behavior at press conferences was necessary. That is because it had previously been a widely shared understanding that: (1) a journalist called upon to ask a question will ask a single question and, having received a response, will yield the floor unless, at the discretion of the President or other White House official answering questions, a follow-up question or questions is permitted, after which follow-up(s), the journalist will then yield the floor; and (2) when a journalist has had his or her question(s) answered, the journalist is expected to yield the floor and, when applicable, physically surrender any microphone the journalist is using to White House staff for use by the next questioner. These basic, commonsense practices are necessary for orderly press conferences that are fair to all journalists in attendance. They have served the public, the press, and the President well.
On November 7, 2018, you failed to abide by these basic, widely understood practices. At a press conference that day in the East Room, the President called on you to ask a question. You asked a question, and the President answered it. You then shouted a second question at the President on a new topic, which the President answered at the same time that he asked you to yield the floor to a new questioner. At that point, you continued shouting at the President and refused to physically surrender the microphone to an intern who had come to collect it from you for use by another questioner. No other reporter at the press conference made physical contact with our intern in that fashion or refused to yield the floor as you did.
Your behavior at the November 7 press conference violated the basic standards governing such events, and is, in our preliminary judgment, sufficient factual basis to revoke your hard pass. While this is our preliminary decision, we would be pleased to consider any material you would
like to submit in response to it.
Should you wish to contest this preliminary decision or the factual basis set forth in this letter, please submit a written response to us in writing via email by 5:00 p.m. on Sunday, November 18, 2018. Should you not submit a response by that time, this preliminary decision will final. You may submit that response by emailing it to one or both of us. We are happy to consider that response and any other materials you would like to submit before a final decision is made in this matter. Should you choose to contest this preliminary decision and submit a written response to this formal notice, we will consider your written response and will issue you a final determination in writing by 3:00 p.m. on Monday, November 19, 2018. Of course, you will continue to maintain your hard pass while the Temporary Restraining Order issued on November 16, 2018, remains in effect.
MORE TO FOLLOW
The White House has filed a response (pdf.)(full embed below) calling plaintiffs’ counsel to task for not conferring with defendants’ counsel, and disputing that there is an emergency since the White House letter expressly states that the hard pass shall remain in place so long as the TRO is in effect:
There is no basis for plaintiffs to disregard this Court’s express instructions and the local rules. As Plaintiffs note in their status report, the White House has made the “preliminary decision” to suspend Mr. Acosta’s hard pass. ECF No. 23-2. But as Plaintiffs also acknowledge, that “preliminary decision” is only the first step in a process contemplated by this Court in entering the TRO, as Mr. Acosta had the opportunity to respond to that decision in writing (which he did yesterday), ECF No. 23-3, and the White House will not make a final determination until 3pm this afternoon at the latest, see ECF No. 23-2. Mr. Acosta “will continue to maintain [his] hard pass while the Temporary Restraining Order issued on November 16, 2018, remains in effect.” Id. In other words, regardless of any decision the White House may make, Mr. Acosta will maintain his hard pass until at least Friday, November 30, 2018, or until further order of this court dissolving the temporary restraining order.
Far from constituting an “emergency,” the White House’s initiation of a process to consider suspending Mr. Acosta’s hard pass is something this Court’s Order anticipated. As the Court put it: “[I]f, at some point after restoring the hard pass, the Government would like to move to vacate the restraining order on the grounds that it has fulfilled its due process obligations, then it may, of course, do so and I will promptly address that and then the remaining bases for the TRO.” Oral Ruling Tr. 15 1:6, ECF No. 28-1. So far, the White House has taken only the first step in fulfilling the due process obligations this Court imposed; it has not yet made a final determination, much less sought relief from the Court’s TRO. There was therefore no need to file a self-styled “emergency” motion in the absence of the consultation required by this Court’s Order and the Local Rules.1
[1. Indeed, had plaintiffs not filed unilaterally, defendants would have proposed to them that they jointly file a motion to extend the joint status report deadline until 6pm today, to allow the parties to consider their positions in light of whatever the White House’s final response would be.]
Not only is there no “emergency” right now, it is impossible to know at this point whether next steps are necessary, much less what those steps should be. The White House has made no final determination on Mr. Acosta’s “hard pass” and currently anticipates making that decision by 3pm today. ECF No. 23-2. It does not make sense to set a schedule until that final determination is made, as the substance and timing of any briefing is entirely contingent on the White House’s decision. Accordingly, Defendants request that this Court extend their deadline by three hours, from 3pm to 6pm, so that they may advise the Court of their position in light of the White House’s final determination. Until that final White House response has been provided, any proposed schedule is premature. Pursuant to LcVR 7(m), defendants have consulted with plaintiffs about extending defendants’ deadline to file a status report until 6pm today, and plaintiffs report that they “take no position on when Defendants file their status report, as long as it doesn’t delay Defendants’ PI opposition filing tomorrow or the PI hearing next week.”
UPDATE – WHITE HOUSE ENDS EFFORT, ISSUES NEW RULES
CNN reports that it received a letter indicating the White House had decided not to pursue suspending Acosta’s hard pass based on the November 7 incident, but has issued new rules governing conduct of the press:
The White House on Monday backed down from its threats to revoke Jim Acosta’s press pass.
“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.”
The original CNN report did not reflect that it was a settlement of the lawsuit. The current (as of this writing) CNN report with the link above makes that clear:
The White House on Monday said that CNN correspondent Jim Acosta’s press pass has been “restored,” bowing to days of pressure and a federal lawsuit against the administration.
CNN signaled that it would drop the ongoing litigation over Acosta’s access to the White House.
— CNN Communications (@CNNPR) November 19, 2018
A Notice of Voluntary Dismissal has been filed:
Here are the new rules. They are not onerous, but limit the practice of journalists continuing to ask/shout questions and refusing to yield the floor. Since this is the most common problem at press conferences, it should serve as a warning to people like Acosta who make a name for themselves by trying to take control of the floor.
(1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists;
(2) At the discretion of the President or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow up has been allowed and asked, the questioner will yield the floor;
(3) ‘Yielding the floor’ includes, when applicable, physically surrendering the microphone to White House staff for use by the next questioner;
(4) Failure to abide by any of these rules (1)-(3) may result in suspension or revocation of the journalist’s hard pass.
Here is the full White House letter:
While the new rules are not onerous, they are being met with objection:
These rules would enable any even half-competent speaker to avoid answering any and all questions posed to them by the press. The @WHCA should strongly oppose this move by the White House. https://t.co/5lwNRrAjzY
— Chris Geidner (@chrisgeidner) November 19, 2018
The White House may not be done yet, as The Daily Beast reports:
In a statement, White House Press Secretary Sarah Sanders said the rules were created “with a degree of regret” and said that a more “elaborate and comprehensive set of rules might need to be devised.”
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