A CNN logo stands outside the CNN Center in Atlanta, Georgia. (Photographer: Chris Rank/Bloomberg News)

CNN Wins Court Order Restoring White House Reporter’s Access

(Bloomberg) -- President Donald Trump must restore White House access to CNN reporter Jim Acosta for now, a federal judge ruled while questioning the administration’s account of its actions.

U.S. District Judge Timothy Kelly’s decision is a rebuke to Trump as he tries to recover from losses in midterm congressional elections. It furthers a portrait of a president overstepping his authority to settle personal scores and carries extra sting because it was issued by a judge the president appointed.

The ruling comes amid Trump’s escalating feud with the media and, more specifically, with CNN, which he’s derided as a purveyor of fake news. Other networks, including FOX News, rallied around their competitor this week in defense of their First Amendment right to cover the president.

The decision to revoke Acosta’s pass is so “shrouded in mystery” that the government couldn’t say who made it, Kelly said in court. “I will order defendants to immediately restore Mr. Acosta’s hard pass.”

CNN’s parent, AT&T, now has two legal wins over the president. Earlier this year, the company prevailed in court over Trump’s Justice Department to gain approval to buy CNN’s former owner, Time Warner Inc.

“We are gratified with this result and we look forward to a full resolution in the coming days,” CNN said in a statement. “Our sincere thanks to all who have supported not just CNN, but a free, strong and independent American press.”

Press Secretary Sarah Sanders said in a statement that the White House will comply and reinstate Acosta’s pass. But she said the court made clear there is no absolute First Amendment right to access the White House.

“We will also further develop rules and processes to ensure fair and orderly press conferences in the future,” Sanders said. “There must be decorum at the White House.”

Kelly read his decision from the bench two days after hearing arguments from attorneys for the president and the network. At issue was whether U.S. Constitutional guarantees of freedom of the press and due process overcome the president’s ability to decide who has access to the White House.

The judge said the White House violated Acosta’s due process rights by revoking his pass without first explaining its actions, doing so only after it had acted, and even then inconsistently. He didn’t address the First Amendment claim.

“This is a case in which the White House’s visceral anger at the press in general and at Acosta and CNN in particular collided with binding Constitutional precedent, including precedent that clearly governed -- and precluded -- the revocation of Jim Acosta’s White House press access,” said Jeffrey Robbins, a First Amendment lawyer at Saul Ewing Arnstein & Lehr who’s not involved in the case. “This is going to prove to be a decision with consequences far beyond what happened to Mr. Acosta.”

Acosta held what’s officially known as a hard pass, which gives him and other reporters unescorted access to the White House complex. The CNN reporter’s pass was revoked late on Nov. 7 following a contentious presidential press conference, a day after Democrats won control of the House of Representatives in the midterm elections.

‘Terrible Person’

Trump cut off Acosta as he tried to press a point over refugees marching through Mexico toward the U.S. border. The reporter refused to surrender a microphone to a White House aide who tried to take it away. Trump called Acosta a "rude, terrible person," and Press Secretary Sarah Sanders said the correspondent’s access had been revoked because he put his hands on the female aide.

In court on Friday, the judge recounted the events leading up to the revocation of Acosta’s pass, noting that the administration’s initial explanation to the public for taking that action was based on a video that critics have said was doctored. Kelly said the video’s accuracy was questionable.

“The government must provide Mr. Acosta with due process,” Kelly said.

The judge said Acosta and CNN had shown they were likely to prevail when the case is ultimately decided. The two sides will consult with one another before the judge holds further hearings.

Outside the courthouse after the hearing, Acosta thanked the press for its support and thanked Kelly for the ruling. "Let’s go back to work," he said. Acosta took no question.

Violated Rights

At arguments on Wednesday, CNN’s attorney Theodore Boutrous told Kelly that summary revocation of Acosta’s pass violated his constitutional rights and was motivated by the president’s animus toward CNN.

"The White House has made very clear that they don’t like the content of the reporting" by CNN and by Acosta, Boutrous said, asserting that content, and not a breach of decorum, prompted the revocation.

Kelly countered at the time that there was at least some evidence that it was Acosta’s behavior, not his viewpoint, that got him in trouble with the White House. Boutrous responded that it’s Trump who sets the rough-and-tumble tone of his press conferences.

"President Trump wants it to be a free-for-all," CNN’s lawyer said.

Absolute Discretion

Justice Department attorney James Burnham said Trump has absolute discretion to decide who is entitled access to his official residence and to whom he spoke, and that that authority is the same in the briefing room as it is in the Oval Office.

"If the president wants to exclude all reporters from the White House grounds, he clearly has the discretion to do that," Burnham said. He also said behavior such as Acosta’s refusal to yield the microphone impedes the president’s ability to conduct press conferences.

He said the White House position on that conduct was clear and not discriminatory.

The CNN suit sparked a rare moment of solidarity across the media landscape, in which rival organizations banded together to issue a statement underscoring the importance of access to the White House. “It is imperative that independent journalists have access to the president and his activities and that journalists are not barred for arbitrary reasons," they said.

Many backed the network out of concern that they could be next to lose access to the White House, if they irk the president. White House press briefings have become increasingly rare but they’re seen as one of the few opportunities to ask the administration questions.

The media group, including the Associated Press, Bloomberg LP and NBC News, said it would file a friend of the court brief backing CNN.

Also joining the fight and backing CNN are the Reporters Committee for Freedom of the Press and the White House Correspondents Association.

The case is Cable News Network Inc. v. Trump, 18-cv-2610, U.S. District Court, District of Columbia (Washington).

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