Annoying but expected. Much will be made of the fact that Judge Timothy Kelly is a Trump appointee, having joined the bench in D.C. just 14 months ago, but the decades-old Sherrill ruling from the D.C. Circuit didn’t leave him much room to maneuver. That’s the leading precedent, and a district court judge is duty-bound to follow it.
The D.C. Circuit and the Supreme Court aren’t, though. That’s where the real action will come.
Here’s what the majority in the Sherrill case said in 1977 (citations omitted):
[W]e are presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press … requires that this access not be denied arbitrarily or for less than compelling reasons…. Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information…
In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment.
In other words, (1) no, the president doesn’t need to call on a particular reporter but he can’t kick him out after inviting him in absent a good reason, and (2) even if he does have a good reason he needs to formally notify him first and give him a chance to respond. That’s the case law that Kelly was stuck with. And so:
Judge agrees with the White House that there is no first amendment right to come onto the White House grounds. HOWEVER once they do open up WH grounds to reporters but denies others, first amendment comes into play.
— Paul McLeod (@pdmcleod) November 16, 2018
Judge is explaining that the White House did not provide due process. He describes the process as “so shrouded in mystery that the government could not tell me…. who made the decision.”
— Paul McLeod (@pdmcleod) November 16, 2018
He’s following Sherrill. As a lower-court judge, he had little choice. Because he was being asked to issue a temporary injunction, he also went on to find that Acosta would suffer “irreparable harm” if his pass wasn’t reinstated, which is certainly true. Can you imagine that grandstanding wad without his daily hit of TV exposure at the White House press briefing? He’d be a broken man — and CNN would be forced to replace him on the White House beat, which really would damage his career.
Meanwhile, rather than take a moment to reflect on how Acosta’s embarrassing shtick has further sunk public respect for their profession, his dopey friends in the media guild will celebrate a public rebuke of their mortal enemy, the Orange Grinch in the White House. Case in point:
This is right result. 1st Amend interests qualify as liberties that can’t be denied w/o due process. In larger sense, this was about right of free press to report on president w/o interference – and to ensure president can’t hand-pick those who cover him. https://t.co/26xcgGgPhV
— Jonathan Peters (@jonathanwpeters) November 16, 2018
Not remotely did today’s ruling address the “right of free press to report on [the] president” or the president’s power to “hand-pick those who cover him.” Acosta can cover Trump 24/7 on CNN for the next six years, standing right outside the White House if he likes. The ruling doesn’t give him the right to ask questions at the briefing, let alone to have his questions answered. It gives him the right to enter the White House grounds, period, absent a “compelling” reason to keep him out. But the media and its apologists will distort all of that in the interest of dunking on Trump and distracting from Acosta’s own consistently disruptive shtick. “White House loses to indefatigable critic” is a better headline than “White House loses to guy who won’t stop talking over his colleagues when it’s their turn.”
If you want to be mad at someone, forget Kelly and be mad at the president and his own sorry legal brain trust that they didn’t at least pause to consult the Sherrill ruling before springing their plan of action to remove Acosta. It would have been simple to comply with the due process requirements of written notice in advance, at least. But Trump, in his haste to lash out and/or start another “kayfabe” wrestling match with his pals in the media, apparently gave the order to oust Acosta off the cuff and now the White House has been embarrassed in court. They’ll have to decide whether to relent at this point or to appeal and ask the D.C. Circuit how it can be that a reporter has no right to speak at a White House event yet does have the right to attend those events and, presumably, to disrupt them by shouting questions while the president tries to answer questions from other reporters. It’s a preposterous legal regime. But maybe Trump, fearing an even more embarrassing loss at the appellate level (imagine Gorsuch or — gasp — Kavanaugh siding with Acosta), will just take the loss and use this as further “proof” that the judiciary is biased against him.
Either way, Acosta should never be called on again. Not by Trump, not by Sanders. If CNN wants their questions answered, send the clown home and install a reporter who views the job as more than opportunity to do a bad Sam Donaldson impression for the Resistance age. Try to take this more seriously than Trump does.
Here’s Acosta on the greatest day of his life, celebrating a win over Trump to applause from his peers while they ignore that he’s bad at his job, frequently cannibalizes their own right to ask questions, and undermines respect for their industry. Stupid, stupid people.
“Let’s go back to work.”
— ABC News (@ABC) November 16, 2018
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