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. 

Jim Acosta Deserves Due Process

Due Process of Law is a bedrock principle of the US Constitution. No one can be deprived of life, liberty or property without Due Process of Law. It is a principle that applies to the Federal Government through the Fifth Amendment, and to the State Governments through the Fourteenth Amendment. 

The concept of Due Process is actually fairly simple at its core. If the Government wants to take away a person’s right, whether it be property or a federal benefit, the Government must give notice of its intent to do so. The notice must sufficiently disclose the Government’s reasons. The person must be given a meaningful opportunity to defending his or her right. The Government must give the person a fair hearing. 

Due Process is messy. It’s inefficient. Due Process causes delay. That is by design. That is because a democracy is not supposed to do the most expedient thing; it is supposed to do the right thing. Thus, while it may be expedient to trample on the rights of a minority class for the benefit of the majority, Due Process prevents that from happening unless the Government has a darn good reason. To put simply, minority rights are protected against pure majority rule. 

And this is what frustrates President Trump time and time again in the manner that he runs the Federal Government. Trump wants things done his way, right away, no questions asked. To tell him he can’t do things his way is a mark of personal disloyalty, not a mark of true patriotism that values the rule of law above all else. 

Coming from the business world, Due Process is not the way Trump operates. He is used to demanding personal loyalty of his employees. He is used to winning negotiations through leverage and strength, not legal virtue. 

It should therefore come as no surprise when Trump expresses disdain for Due Process. We can’t have undocumented aliens come in the country and be given a hearing with the Immigration Courts. That will take too long. We can’t have recounts in the State of Florida. That’s just delay. We should just recognize who the winner is now and move on. 

One of the most egregious examples of Trump’s disdain for Due Process is his treatment of CNN Reporter Jim Acosta. It’s no secret that Acosta’s relentless questioning irritates Trump. He has routinely called Acosta rude and tried to evade Acosta’s questions. Last week, Trump revoked Acosta’s press pass. 

Ostensibly, the White House revoked Acosta’s press pass on the allegation that Acosta assaulted a young woman intern attempting to retrieve the microphone from Acosta. Press Secretary Sarah Huckabee Sanders even tweeted a video to back up her claim. 

The problem is that the White House acted without giving Acosta notice of its intent to revoke his credentials or an opportunity to defend himself. In short, the White House denied Acosta Due Process. 

The denial of Due Process is particularly egregious in this case. Many claim that the video Huckabee Sanders released, which happened to originate from Alex Jones’ Infowars, was doctored. Governments should never be permitted to take away a person’s right through trumped up evidence. Thus, the evidence must be tested and Acosta must be given an opportunity to attack its reliability. Jim Acosta must be given Due Process. 

Acosta and CNN have filed a lawsuit over Acosta’s press credentials. One of the allegations is the denial of Due Process in violation of the Fifth Amendment. It is a decision that the court must decide properly in order to reign in Trump’s resistance to Due Process and temper his more dangerous authoritarian tendencies. 

By: William J. Kovatch, Jr.