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White House restores Jim Acosta’s press pass, issues new rules

White House restores Jim Acosta’s press pass, issues new rules

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.

(added) The transcript (pdf.) of the decision on the TRO, which is only now available publicly, suggests that the White House could institute some sort of process to deprive Acosta of his hard pass:

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.


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.”


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.

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:

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.”

CNN and Acosta v. Trump – Plaintiffs Emergency Status Report Seeking Expedited Briefing Schedule on Prelimi… by Legal Insurrection on Scribd


CNN and Acosta v. Trump – Government Response to Plaintiffs’ Status Report 11-19-2018 by Legal Insurrection on Scribd


CNN and Acosta v. Trump – Transcript of TRO Decision, November 16, 2018 by Legal Insurrection on Scribd


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He now has due process applied to the incident.

    Edward: He now has due process applied to the incident.

    No. Due process means knowing the rules in advance, including any possible punishment. It’s not due process to say after the fact that striped ties are not allowed, then apply a retroactive punishment.

    The President isn’t required to have press conferences, or to allow reporters access to the White House, but once deciding to do so, the forum becomes subject to First and Fifth Amendment protections.

      The rules that he has been consistently breaking were learned by all of us in Kindergarten.

      alaskabob in reply to Zachriel. | November 19, 2018 at 12:40 pm

      Being in the press does not allow assault of an intern. He was not complying with her instruction to take the microphone to another reporter.

        alaskabob: Being in the press does not allow assault of an intern.

        There is due process for the charge of assault. Let us know when Acosta is so charged.

          alaskabob in reply to Zachriel. | November 19, 2018 at 3:49 pm

          So now we need to codify bad manners… shall we enter Emily Post into the Congressional Record? Bad is bad behavior…. for all to see. Get a grip…. once one goes down the “everything must be made into law” rabbit hole life becomes uni-dimensional.

          alaskabob: So now we need to codify bad manners

          You are free to disinvite someone from your home for any reason, including that person’s or your own bad manners. However, the President is a government representative, and a press conference is an official function of the office.

          LastRedoubt in reply to Zachriel. | November 19, 2018 at 6:16 pm

          ….And space is limited, so they get to choose ho can show up.

          Neither his first amendment rights to speak freely nor his fifth amendment rights are abridged. he is not jailed, confined to prison, or even his own home. No-one is preventing him from reporting on whatever he hears of.

          He can be an ass on his own time, but no-one, not even Trump, is required to allow him in and be forced to listen.

          Milhouse in reply to Zachriel. | November 19, 2018 at 7:21 pm

          a press conference is an official function of the office.

          No, it is not. It’s something he chooses to do, or to have his spokesmen do, because he wants the publicity. As such he is entitled to invite or disinvite people arbitrarily, just as he may to with invitations to lunch or to sleep in the Lincoln bedroom, and I think the judge was wrong to say otherwise.

          LastRedoubt: ….And space is limited, so they get to choose ho can show up.

          Sure, as long as the process is constitutional.

          LastRedoubt: As such he is entitled to invite or disinvite people arbitrarily, just as he may to with invitations to lunch or to sleep in the Lincoln bedroom, and I think the judge was wrong to say otherwise.

          Trump can’t block users on Twitter, judge says

          Argh. Second quote should be attributed to Milhouse.

      I have to disagree. Due process is merely having some mechanism in place which can be used to attempt to reverse an action, by some entity, which directly affects a specific person or group of people. It is a mechanism for argument. That is all that it is. It does not require that any specific rules of conduct be established or that the affected party knew what those rules were, if they were established, only that there is a means in place to contest any such action.

        DaveGinOly in reply to Mac45. | November 20, 2018 at 1:29 am

        “Due process of law” has mechanisms to “reverse” decisions, but the “due process” here can be simple written rules that grant some specific person or persons the authority to ban someone from the WH. This process does not require a mechanism of to reverse decision. The rules can state that the person or persons making the decisions are the sole arbiters and their decisions are final. Then, as long as the heave-ho is conducted by the appointed person or persons, due process (a set of rules applicable to all who submit to them) is served. Press passes are privileges extended by the WH as a courtesy. Privileges are subject to revocation under the rules governing the privilege.

          Due process is not just a set of rules, but encompasses a process by which decisions affecting an entity may be reversed or prevented. Here is a list of the things which should be looked for by a judge, when deciding if due process was met:

          “While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly generated a list that remains highly influential, as to both content and relative priority:

          An unbiased tribunal.
          Notice of the proposed action and the grounds asserted for it.
          Opportunity to present reasons why the proposed action should not be taken.
          The right to present evidence, including the right to call witnesses.
          The right to know opposing evidence.
          The right to cross-examine adverse witnesses.
          A decision based exclusively on the evidence presented.
          Opportunity to be represented by counsel.
          Requirement that the tribunal prepare a record of the evidence presented.
          Requirement that the tribunal prepare written findings of fact and reasons for its decision.

          This is not a list of procedures which are required to prove due process, but rather a list of the kinds of procedures that might be claimed in a “due process” argument, roughly in order of their perceived importance.” –

          Now, published rules of conduct are NOT necessary in order to satisfy the requirement for due process. What is always required to satisfy due process is a mechanism whereby a person negatively affected by the decision of a government unit can address this action and attempt to reverse it.

          In this case, Judge Kelly has inferred that suspending or rescinding a hard pass is a government action which requires a due process mechanism which allows the affected to contest the action. All well and good and he might very well be correct. However, I have found no mention of whether Acosta requested any kind of a hearing with any person in authority at the WH to contest the action, let alone that any such hearing was refused. So, it is unclear how Acosta was denied due process. Also, it has not been shown, to my knowledge, what immediate and irreparable harm would be suffered by the continued suspense of Acosta’s hard pass, pend a regular hearing on an injunction.

          Ragspierre in reply to DaveGinOly. | November 20, 2018 at 12:30 pm

          You won’t read the flucking record. You keep saying crap that is manifestly false. Like you know what you’re talking about.

          You don’t.

      Blueshot in reply to Zachriel. | November 19, 2018 at 12:50 pm

      Actually the due process system was in place long before Trump took office. The complaint, one of them, from CNN and Acosta was that Trump’s White House failed to follow the due process system.

      Well now they are following it and Acosta is yet again on the outside looking in.

      MarkSmith in reply to Zachriel. | November 19, 2018 at 4:29 pm

      Due Process mean zero about knowing the rules in advance. It means someone else knows the rules and follows them.

    Looks like the White House caved. They can’t win on due process by retroactively applying rules.

      alaskabob in reply to Zachriel. | November 19, 2018 at 4:21 pm

      Ah, but what is the definition of a “question”? You are happy with the limitations now set.. Think of it.. no prefacing a question with a statement… just a question will be allowed. That constrains things quite a bit… and Acosta has won a Pyrrhic victory. What he did .. now is not permitted. I call that a lose.

      Milhouse in reply to Zachriel. | November 19, 2018 at 7:23 pm

      That they decided not to fight doesn’t mean they were wrong. I am not responsible for their decisions.

      JusticeDelivered in reply to Zachriel. | November 19, 2018 at 8:26 pm

      I would like to read about how Acosta has been acosta-ed, in traction, with his jaw wired shut. He personifies the entitled mentality.

Bucky Barkingham | November 19, 2018 at 11:12 am

Will end up at SCOTUS for a resolution. If the ruling goes against CNN look for them to whinge about Kavanaugh being an illegitimate Justice.

Also the media in general may not be happy with any limitations that a SCOTUS decision puts on what they perceive to be their unbridled right to access whenever and wherever they want.

    The answer is to kick ALL of the press corps out, and import 10-15 bloggers.

    A few Conservatives, a few Republicans, a few Independents and 1-2 Liberal Bloggers. By a strict definition of the term, bloggers could be classified as journalists too. Let the MSM go piss up a rope!

In 218 years of the White House and all those presidents residing therein, this had never been at all necessary until incredibly biased reprehensible degenerate political activists CNN and Jim Acosta came along. Future presidents are really going to love these new ‘Code of Conduct’ and “Due Process” things, and White House so-called “journalists” and their employers are certainly going to loathe it now and in the future.

And it will be the lasting legacy of CNN and Jim Acosta long after they’re both dead and gone.

    oldgoat36 in reply to FlatFoot. | November 19, 2018 at 2:31 pm

    To be fair, there have been a number of reporters/ journalists who have been similar to Acosta over the years, none of them were refusing to give up the mike, but some have gone on after another reporter was called on. Many of them have pontificated when given the floor. Hellen Thomas was one such creature, but I don’t think they went quite as far off as Acosta did.

This could become a judicial nightmare. Unless the courts rule that there is NO 1st Amendment right for anyone to enter the WH AND that a hard pass is merely a convenience extended to those people, whom the President wishes to allow access to the Wh, who have already completed the required background check, it is going to have far reaching unintended consequences. And, Judge Kelly has already inferred that this convenience can not be rescinded except for some vague cause. As soon as the judge ruled that there had to be some vague “due process” for the WH to rescind these passes, he inferred that those who were issued such passes were, in fact, entitled to them.

This will all end in tears, somewhere down the road.

    Ragspierre in reply to Mac45. | November 19, 2018 at 1:27 pm

    You’ve been stupidly…and stubbornly…wrong about everything you’ve said about this minor incident since the TRO was issued.

    Here you continue your batting streak. O.

    That should be moon-batting streak.

      Rags, buddy, you really have to learn how to make a cogent argument. And, you seem unable to do that when you respond to almost everything that I post.

      In the thread that you cited, I asked you what the immediate, irreparable damage that CNN and Jim Acosta would have suffered if the TRO was not issued. And, as usual, you failed to do that. You made the statement that the judge addressed that, but never told us WHAT he said. By the way, Judge Kelly was the one who said, as a basis for granting the TRO, that the plaintiffs were likely to prevail in a trial. He seemed to think that this was an important point. Now, here you are making unsupported, categorical statements that I am wrong.

      I have been very clear with my position on this case and have provided clear reasons for them.

      First, while there may actually be a 1st or 5th Amendment violation in revoking Acosta’s hard pass, that is something that should have been addressed at a full hearing, not at an emergency hearing. And, Kelly was not really clear as to whether there was an actual 5th Amendment violation involved. I have not heard any evidence that Acosta made any attempt to argue, before any representative of the WH, that his hard pass should not be rescinded, let alone that this was denied by the WH. And, even though Kelly refused to rule definitively on whether there was any 1st Amendment issue involved, he inferred that one was likely.

      Second, there does not seem to be ANY immediate and or irreparable harm in not issuing a TRO to reinstate Acosta’s hard pass. Cnn still had ample assets within the WH press coprs and no evidence was presented that Jim Acosta would suffer and damages as a result of not being able to freely enter the WH without obtaining a day or event pass. And, as I hav e pointed out , the most important requirement for the issuance of a TRO is that the petitioner is likely to suffer immediate and irreparable harm if the request for the TRO is not granted.

      This whole legal kerfuffle should have been handled in the normal manner through litigation. It can be expedited, but there was no reason tor it to be handled in this manner. If CNN and Acosta were adamant about handling this through the courts, then arguments should have been scheduled for two or three weeks away, as would be common, and the parties could present a competent argument. The TRO only covered 14 days and then the WH can again rescind Acosta’s hard pass, without being in violation of a court order. Wait, that was what they said they were going to do, wasn’t it? No, Kelly should have simply denied the request for a TRO, ordered expedited hearing of the case and let it go. Instead, by giving any opinion, as he did to attempt to justify issuing the TRO, he has simply muddied the waters, needlessly. If the WH shows up in court with a codified system to hear disputes about an action to rescind a hard pass, then that takes care of the due process issue and the 5th Amendment is now off the table. This leaves a question of a 1st Amendment access to the WH. The hole in that is that none exists, unless the WH establishes one. And, as Kelly has already acknowledged that the WH has the unquestioned authority to limit access to its facilities, this means that it can pick and choose which members of the “press” can enter. Otherwise, it would not be able to limit any journalist’s access to the WH.

      The issuance of the TRO was either a horribly flawed legal decision or strictly a political one. And, all it will do, in the end, is cause everyone more problems.

    Ragspierre in reply to Mac45. | November 19, 2018 at 1:37 pm

    As soon as the judge ruled that there had to be some vague “due process” for the WH to rescind these passes, he inferred that those who were issued such passes were, in fact, entitled to them.

    No, moon-batter. A speaking IMPLIES, a listener INFERS. And the judge did no such stupid thing. Due process is not a “vagary”. It’s a necessity. You’ll find it anywhere you have an actual legal system. And when a state actor extends a privilege, they may ONLY withdraw that on condition of due process SHOWN. What you jones for is call “tyranny”.

Listened to a few radio news items on this earlier and the consensus seems to be that Acosta is getting no love from his fellow “journalists”. That matters a lot. Acosta is now the loud, off-note, out-of-sync trombone that refuses to stop playing. The press pool will take care of him. He should expect to have his trombone stomped on soon.

    C. Lashown in reply to Pasadena Phil. | November 19, 2018 at 11:59 am

    Shoved firmly up his rectal orifice, the world can hear him fart for the next 10 years. Send Acosta over to Africa to report on the Ebola epidemic, that should calm him down a little.

Giving the courts a handle with which to run the White House affairs is a serious mistake. Acosta isn’t even a federal employee but the White House still can’t fire him.

    oldgoat36 in reply to stablesort. | November 19, 2018 at 2:46 pm

    The goal isn’t to necessarily fire Acosta, nor should it be. This is about him being allowed to go to any of these briefings, he would still be allowed to talk and dissect his POV on any issues brought up in the press briefings, not allowing him in serves to preserve the decorum of such settings.

    I might be wrong, but in reading the above statement from the Judge, it seems like he is saying there is no 1st Amendment issue in this as far as he can tell. He isn’t ruling on it, but he is giving an indication of where that argument would likely go.

    Acosta loses the school yard bully pulpit through this, as he won’t be allowed in to play to the cameras and the CNN audience. Or I should say that if this action has given Acosta and CNN enough “due process”, and the TRO is rescinded, so Acosta loses his hard pass.

    The hard pass seems more like a privilege rather than a right.

If the courts are going to assert some authority over who is admitted to the White House, perhaps these press circuses should be held elsewhere. Maybe in a local bar; reporters should appreciate that. Important news, communiques, policy white papers, etc can be communicated just as well by posts on the White House website as they can by being handed to reporters. In the Internet era, the White House press corps seems to have no real function aside from lowering property values.

So what is the “emergency”? The only thing that has changed is that Trump corrected a loop hole at the direction of the judge. What new information is CNN presenting? That shutting down their circus act will hurt their ratings? That Acosta’s regular late night gig with the “Jimmies” will be cancelled?

In this brave new world of Antifa assaulting Republicans in public places, threatening them at their homes, smashing people with bike locks, Congress critters ranting to encourage it, and the MFM excusing it, violent orcs disrupting Senate hearings, then screaming Trump is ‘literally hitler’ – due process for a single reporter concerning his bad manners seems rather quaint and downright ridiculous.

But up is the new down, I guess.

Due process requires notice and an opportunity to be heard. The White House has now provided Acosta with notice of the proposed decision, and the opportunity to be heard before it becomes final. So, they have complied with the judge’s ruling. Once they issue a final decision, and presuming it still imposes some kind of penalty on Acosta (not a sure thing in my opinion–they could issue a decision basically saying this conduct was inappropriate, and will be the basis for revoking someone’s press pass in the future, but not take action on this occasion on account of his “I didn’t know it was prohibited” claims), then they can ask the judge to lift the TRO so they can actually revoke the press pass.

Assuming they do impose a sanction, what this is going to do is force the judge to confront the 1st amendment issues which he carefully avoided the first go around. The White House clearly believes that if forced to confront those issues, the judge will find CNN’s/Acosta’s position on them to be without merit.

    Ragspierre in reply to Wisewerds. | November 19, 2018 at 1:48 pm

    I disagree on a few points.

    First, and most important, the judge is NOT going to be forced to rule on a First Amendment claim. Federal judges are not that easy to corner. Any First Amendment claim here is so tenuous as to be invisible, IMNHO.

    Second, I HOPE the smarter people in the administration CAREFULLY make any action PRO-spective. The pathology of Acosta will not require much of a wait before he NEXT does something really stupid.

CNN is very likely going to have to admit in court that the description of press conference protocol at the WH is exactly as described in the letter from Shine/Sanders and that Dear Diary violated the protocol. CNN and Dear Diary would be better served if they admitted his faux pas and apologized to the president and ALCON, and pledged that Dear Diary would abide by the protocol in the future. But they won’t.

buckeyeminuteman | November 19, 2018 at 2:27 pm

Now the WH needs to issue a hard pass to Alex Jones of Info Wars and seat him next to Acosta. See CNN’s true colors on the free and unfettered access of the press.

Colonel Travis | November 19, 2018 at 2:46 pm

I’m struggling to understand why there is a possible Fifth Amendment violation.

It seems the closest court case we have to this is from 1977 (Sherrill v. Knight), a case that went to the U.S. Court of Appeals for the D.C. Circuit. This case is also what the current judge cited in his TRO ruling. In 1977, the court stated:

With respect to its requirement of notice and opportunity to rebut, the Court relied on its determination that denial of a White House press pass constitutes a deprivation of “liberty” without due process of law within the meaning of the fifth amendment because it interferes with the free exercise of the profession of journalism.

I was a journalist for many years. What Jim Acosta did, which resulted in his credentials being revoked, was not “the free exercise of the profession of journalism.” It was “being an unprofessional ass.”

The Trump WH apparently has no problems writing up guidelines that reporters must follow, because of what the judge stated. OK, if that’s what it takes, fine. But I’m more than a little ticked that we have to turn to The State yet again to play Mommy And Daddy, because Acosta was either never lectured by anyone in his entire life about how an adult should not behave like a child, or he was encouraged to behave a child his entire life. Actually, I’m guessing it was a combination of both.

A constitution like ours, a country built on freedom and liberty like ours, is useless with an immoral citizenry. Some of those immoral right now have WH press passes.

    MarkSmith in reply to Colonel Travis. | November 19, 2018 at 4:42 pm

    I think they should make CNN prove that he is a journalist and they are media. I would ask them to throw it out because they have not standing. HA, that would be funny.

      Milhouse in reply to MarkSmith. | November 19, 2018 at 7:29 pm

      It’s irrelevant whether they are “hournalists” and “media”, because these people don’t have more rights than anyone else.

    In a nutshell, the 5th Amendment requires that an opportunity to argue against any action taken by any organ of the US government be provided to any entity negatively affected by said action. This is due process.

    Over the years, courts have expanded upon what constitutes due process, in government affairs. Generally there has to be a known, formal mechanism in place for the affected entity to contest the action. To make this mechanism easier to administer, codified rules and regulations, governing the reason for the action taken, have to be available.

    The WH is a government organ. So, it is very likely that rules of behavior would have to be codified and a formal hearing mechanism be in place to satisfy the 5th Amendment guarantee of due process for negative actions taken against persons allowed onto the premises.

      Ragspierre in reply to Mac45. | November 20, 2018 at 12:13 pm

      NO! Wrong on all counts.

      If you’d just read, you wouldn’t keep this litany of bullshit going. Read the flucking record!

American Human | November 19, 2018 at 3:09 pm

Not a lawyer:
1 – There is no law, passed by congress and signed into law by POTUS, dealing with access to presidential press conferences.
2 – Isn’t “Due Process” a legal term?
3 – Mr. Acosta was not accused of breaking any law
4 – Doesn’t the 5th Amendment deal with being charged with a capital crime or other infamous act (I would think this stupidity doesn’t rise to the level of “infamous”)?
5 – If the government (the only entity that can censor the press) didn’t infringe on Mr. Acosta to in any way express his opinion or publish any sort of media, how does a judge even consider the abridgment of Mr. Acosta’s 1st Amendment rights?
6 – If there is no law to break and no police were involved, how could Due Process even be involved?

I’m an Engineer asking Lawyer questions. Please help.

    Ragspierre in reply to American Human. | November 19, 2018 at 5:16 pm

    Not a lawyer:
    1 – Correct.
    2 – Partly.
    3 – Not yet that we know of.
    4 – In part.
    5 – He didn’t, as he said.
    6 – Read the 5th.

      Colonel Travis in reply to Ragspierre. | November 19, 2018 at 5:43 pm

      I’ve read the 5th, I’ve read court cases on the 5th, I do not understand why this is a 5th amendment issue.

      I want the legal reasoning <— and have not found it anywhere. The judge who issued the TRO said this was a "Fifth Amendment rights [case] under Sherrill."

      I've read that decision. Using it, one can now argue that any and all conduct by a journalist, no matter how stupid, disruptive and non-journalistic, is now classified as "the free exercise of the profession of journalism".

      Also, the Sherrill case was not like the Acosta case. Sherrill was about not issuing a press pass and not telling him the reason why (one big fat reason was that the reporter had an arrest record because of his history of violence, including punching a press secretary of the gov. of Fla. in the face. I would have kept him off the pass list, but common sense has taken a back seat to jackassery in America.) At the same time, reporter Sherrill had never been given the opportunity to behave professionally or unprofessionally, so assuming he was going to behave unprofessionally is not the same as the Acosta situation – one who has already been given a press pass and behaved unprofessionally.

      So Acosta's presence at the WH, in and of itself, is worthy of Fifth Amendment protection before all else, and his behavior has no bearing on that protection? Is that what this boils down to? I'm not trying to be obtuse here, I'm trying to understand a position that has been defended horribly by the very same stupid media that desperately wants to be defended.

        Ragspierre in reply to Colonel Travis. | November 19, 2018 at 6:51 pm

        I’d like to help. I don’t know how. You’ve read the same stuff I have, and come to conclusions that I don’t see supported by anything in the two case you mentioned.

        “I’ve read that decision. Using it, one can now argue that any and all conduct by a journalist, no matter how stupid, disruptive and non-journalistic, is now classified as “‘the free exercise of the profession of journalism”‘.

        I guess one COULD. But the courts never approached any such conclusion. Quite the contrary.

        Where the Acosta court relied on Sherrill, from a lawyer POW was on process; notice, a chance to rebut, and a formal written statement of the reasons for the action. Just some due process.

        “So Acosta’s presence at the WH, in and of itself, is worthy of Fifth Amendment protection before all else, and his behavior has no bearing on that protection? Is that what this boils down to?”

        No! Certainly not. Nothing approaching that. As I said elsewhere, holding a “hard pass” is not a free-hold. But it does entail some due process to revoke once granted. What the government giveth, the government can taketh away…just by following the rules.

        Plus, as I’ve also said, Acosta will get his in the end. I think you can count the days…

          Colonel Travis in reply to Ragspierre. | November 19, 2018 at 11:41 pm

          Rags, thanks. This is still where I don’t have a satisfactory answer, but I could have one with more information:

          Where the Acosta court relied on Sherrill, from a lawyer POW was on process; notice, a chance to rebut, and a formal written statement of the reasons for the action. Just some due process.

          Correct. It’s process for a constitutionally-justified reason and I’m 100% on board with this POV in a general sense. I’ve only taken a few constitutional law classes, I am not an expert here I only enjoy learning about it, so I ask that you help me understand further:

          Let’s say Jim Acosta did nothing but pull down his pants and mooned Trump, then had his credential revoked in exactly the same manner. Could he sue over a Fifth Amendment violation? Or make it more vulgar than that, I won’t get into details just use your imagination. My question: is there ever any circumstance (in this or any other case of any other subject) when a due process defense could not apply?

          Ragspierre in reply to Ragspierre. | November 20, 2018 at 12:12 am

          I think your hypo would result in much worse consequences than the loss of a “hard pass”.

          Colonel Travis in reply to Ragspierre. | November 20, 2018 at 12:52 am

          It would be most entertaining. But, can you apply a due process defense to any kind of behavior? That’s what I don’t know.

          Ragspierre in reply to Ragspierre. | November 20, 2018 at 9:47 am

          I don’t see an exception. But let’s make sure we’re talking apples and apples here; notice, a chance to make a defense, and a written decision from the authority making the call.

          There is some discussion of a “standard” by both cases, but I think it’s apparent that that is the least important part of the due process analysis. The Sherrilll trial court wanted a (as I read it) narrow and detailed standard promulgated by the Secret Service, but the appellate court decided not to impose that.

          I think that “standards” part is the one the administration has moved on now, which is good, but it by no means covers the waterfront, and it shouldn’t try to.

          In your hypo, I kinda figure that any due process analysis beyond what we’ve discussed would trip over a failure to write a specific standard regarding losing a press pass. There WOULD be other due process involved that would be a lot more grave.

          Ragspierre in reply to Ragspierre. | November 20, 2018 at 9:50 am

          …sorry…”would NOT trip over…’

          Colonel Travis in reply to Ragspierre. | November 20, 2018 at 1:00 pm

          OK, you’ve helped me understand this fully now and withdraw my initial complaints.


          Ragspierre in reply to Ragspierre. | November 20, 2018 at 1:10 pm

          A pleasure. Thanks for the opportunity and your attitude.

Why is On-the-Ragspierre still allowed to abuse people here?

    Ragspierre in reply to Crawford. | November 19, 2018 at 5:04 pm

    Did I “abuse” you or anyone else here by NOT putting up with stupidly false crap about this minor issue?

    I’ve brought TROs. I’ve been granted TROs. I know about TROs professionally.

    I also deplore and will push back against the various Chicken Littles that infest these threads.

    Oh, and I was right. Again. The Republic seems to have come through very nicely.

    And Acosta will get his in the fullness of time.

    All those are just some of the many reasons.

    “Why is On-the-Ragspierre still allowed to abuse people here?”

    We’ve been over this question a lot and there are 3 leading theories (that don’t involve aliens)

    1. The current blog software doesn’t allow for a hard ban. The staff is reluctant to admit this out of fear all heck would break loose.

    2. The Professor doesn’t mind if the guests in his house are bullied by another guest. He does not respect us enough to extend the same courtesy he expects of us. That may be unfair of me, but when was the last time he even bothered to drop in on the comments?

    3. Rag’s gets special treatment because he is a sock puppet account of either the staff or the Professor himself. That may sound unlikely, but the exact thing happened at Althouse m Both Ann and Mead felt a need to vent contempt they had for some regular commenters, so they pretended to be someone else in the comments.

      I’m sorry, Fen, who are you exactly? What is your role in the management of this blog? I’m confused because you appear to believe your insulting and inaccurate assessment of the prof and of our readers matters to anyone here.

        tom_swift in reply to Fuzzy Slippers. | November 21, 2018 at 9:12 am

        . . . you appear to believe your insulting and inaccurate assessment of the prof and of our readers matters to anyone here.

        At a wild guess, I’d say he’s trying to address a genuine mystery. Perhaps not addressing it very well . . . but obviously nobody else is addressing it, either.

      Ragspierre in reply to Fen. | November 20, 2018 at 10:52 am

      Wow, Hen, talk about the “paranoid style”…!!!

      Purrr idddddy wad-thongs…

      So tried, so pitiful…

DouglasJBender | November 19, 2018 at 5:26 pm

This whole thing is just pathetic. Acosta clearly crossed an unstated, but well-understood, boundary, and by all that’s righteous and reasonable, the White House was clearly within its rights to deny Acosta’s hard-pass for his unruly actions.

In a just world, Trump would have walked up to Acosta, punched him in the mouth, taken back the mic, and had Acosta thrown out and permanently banned. And in that just world, Trump would have received a standing ovation, and universal praise.

    In a just world Trump wouldn’t have needed to do anything to Acosta. The other reporters would have turned on him and kicked him out themselves and than apologized to the President for allowing him in.

Either Accoster putting his hands on the WH intern was wrong (and “Karate Chop” Jim did do that, most definitely) or it wasn’t. If it was wrong then don’t give him a press pass back. If it wasn’t wrong, then they never should have revoked it in the first place.

Scroll up to the pic at the top of this thread. It’s undeniable that Accoster put his hand on the intern (not, NOT, the assistant WH press secretary as has been erroneously been reported). The only question remaining is, what is wrong?

I’m of two minds on this. During the course of my career I went from Tailhook to women belong in ground combat. That’s a huge step for me to make. The best I can do is tell the ladies, “Look, I don’t think you belong in combat and if you pick up that pugil stick I will do you the favor of showing you why. Better me thaan ISIS.”

But I’ve lost the argument. Which means I have to soldier on. And I learned from my sister and cousins that girls aren’t hot house flowers. Was it wrong for Accoster to block the intern’s attempt to take control of the mike? I wouldn’t have done it. I’d have let her take the mike. I’d have acknowledged I had asked my allotted questions. But then I’m not a scumbag reporter. I’m a nice, clean cut, American sailing man and love maker and life taker who has never missed movement.

One thing that chaps my hide, as if anyone cares. Which, really, is how I want it. I don’t want you to care about me because I don’t care about you.

But all the time I hear about how “we” did it with the “negroes” and therefore we can integrate “X” into the armed forces.

Like h3ll. One thing to keep in mind is that the Navy, at least was integrated until Wilson became President. (cont)

Nimitz, King, Halsey had served before the Navy became desegregated. They knew damn well that black Sailors could do the job. There were black Sailors grandfathered in as they were Torpedomen and Quartermasters and Gunners Mates during WWI.

And it turned their stomachs, the race riots. Like the one following the Port Chicago (Kali, not Illinois) explosion.

It was an impossible situation. The Black Sailors had a point. They could do the job. The White Sailors had a point. They deserved a rest from combat. Black Sailors were only allowed, after Wilson, to serve in a limited capacity. Some shore duty is all they wanted. Nimitz et all knew they had to provide Truman with proof. They provided proof.


I’m glad I, like Jesus, saves. I save my work. I see I mentioned the Port Chicago explosion. Have I mentioned the USS Sea Cloud?

In case you are confused, the USCG becomes an arm of the USN in time of war. So the USS Sea Cloud, not the USCGC Sea cloud as she would have normally been named was conducting weather patrol off of Greenland. And a black Sailor asked to strike for engineman. And he was good at it. And the Navy said “No” as the only allowable jobs for blacks back then was Mess Steward.

I’m not particularly forward thinking. But I recognize a waste of resources when I see it.

Would the rules provided for the revocation of any pass, hard or day. They may regret hard-coding “hard pass” in the rules.

(cont.) The thing is, not everything is like racial integration. I am convinced that advocates of a lot of the Bulls&&& don’t want to gather evidence because they know damned well what they are doing.

The difference is that integrating black MEN into a service that consisted almost entirely of men wasn’t all that difficult. And it was made less difficult by the fact that black men had already served in every capacity. The Army, too, had demonstrated that they increased military efficiency by integrating the force.

This kind of evidence-gathering has never been done with gays, women, trans, whatever. And that’s for a reason.

So nice I said it twice. This refurbished Hewlett-Packard is about what you’d expect. I really shouldn’t complain. But, anyway, it’s why everything blows.

That and Democrats.

Let me take a moment to expound on the unintended consequences involved in this whole issue.

First, the WH will codify a set of rules , for the press, which must be followed or some type of punitive action will be taken.

Second, these rules will have to be strictly enforced or their are irrelevant and failure to take action will result in charges of unfairness on the part of the WH and we will be back in court.

Third, strict enforcement will lead to members of the press being ejected, which will lead to they and their organizations filing suit that their 1st Amendment rights were violated and we will be back in court.

So, this will only lead to more and more problems for both the WH and the press corps. Once you establish a Constitutional requirement for due process in order to eject an unruly visitor to the WH, you open up a HHHUUUGGGEEE can of worms, which will ultimately result in more problems than exist today. It may become advantageous to simply rescind all press passes and post press releases on the internet.

This is all nuts.

    Ragspierre in reply to Mac45. | November 20, 2018 at 11:49 am

    Indeed, everything you say here is ‘nuts’.

    You have virtually everything wrong that you’ve blathered about here for days.