Due Process Prevails; Jim Acosta’s Press Pass Reinstated

In a victory for the principle of Due Process, US District Court Judge Timothy Kelly granted injunctive relief to CNN and its White House correspondent Jim Acosta requiring the White House to re-issue Acosta’s press pass immediately. The White House revoked the press pass last week, after a contentious exchange between Acosta and President Trump, where Acosta pressed the President for answers concerning the so-called caravan of migrants, mostly from Honduras, traveling on foot through Mexico to the US border. 

Publicly, Press Secretary Sarah Huckabee Sanders justified the action, tweeting a video she claimed showed Acosta had assaulted a young intern who was attempting to retrieve a microphone from Acosta. The video itself was a clip originating from Alex Jones’ Infowars organization that many claimed had been doctored. 

Judge Kelly noted that once the White House had opened its grounds to Acosta by issuing the press pass, he had a First Amendment right to access. The White House could not arbitrarily revoke that right without giving Acosta Due Process of Law. Judge Kelly noted that the Department of Justice attorneys arguing the case could even not tell  him who in the White House made the decision to revoke Acosta’s credentials. The Judge also noted that the justification posited by the White House that Acosta had touched an intern inappropriately was likely untrue and that the evidence upon which this claim was based was of questionable accuracy. 

The President responded to the ruling claiming that this was about decorum. He stated that he intended to write rules and regulations over reporter behavior at press conferences. 

Such rules would begin to address the Due Process concerns over arbitrary revocation of press credentials. Due Process requires at a minimum notice of the Government’s reasons for taking away a right, and an opportunity to be heard. Any new procedure should, at the least, include a way to challenge White House action, and appeal it. 

But rules and regulations on press behavior can lead the White House to further issues. Any White House action must be neutral to the viewpoint of the reporter in question. That is, the President cannot revoke a press pass simply because he does not like the questions or leanings of the reporter in question. Whether a reporter is legitimately being rude or lacking in decorum, then, would depend on whether Trump was simply using the argument as pretext to punish a reporter who aggressively questions him on a topic the President wants to avoid. That is, the President could not punish a reporter who used follow up questions to prevent the President from answering in incomplete or misleading answers. The President also cannot define rudeness as failing to emphasize news the President perceives to be beneficial to him. 

Today’s decision, while not a final decision in CNN’s lawsuit against Trump, nonetheless is a victory to those who wish to reign in Trump’s authoritarian tendencies by countering his ability to make arbitrary and capricious decisions without adhering to proper legal processes. It is a victory for limited government. 

By:  William J. Kovatch, Jr.