iStock/Thinkstock(WASHINGTON) — During an emergency court hearing, the Trump administration defended revoking CNN chief White House Correspondent Jim Acosta' press pass arguing that it's the president's "authority" on whether to exclude journalists from White House grounds.
“If the president wants to exclude all reporters from White House grounds he clearly has the authority to do that,” James Burnham argued before the judge on behalf of the president. The West Wing is a tight, small space, he argued, which is why journalists want to be there.
"We’re talking about the physical White House, I mean the one building in which the president’s authority over how people act, where they go, should be at its apex," Burnham said.
CNN and Acosta filed suit against President Donald Trump and top aides on Tuesday for stripping Acosta, without warning, of his access to the White House, where he works daily. The indefinite revocation of Acosta’s press credentials, known as a “hard pass,” came on the heels of a heated exchange between Trump and Acosta on Nov. 7.
CNN and Acosta filed an emergency motion to have Acosta’s press pass immediately reinstated as the court case continues and asked for a ruling from Trump-appointed U.S. District Judge Timothy J. Kelly in federal court in Washington Wednesday afternoon.
On Wednesday, the judge pushed CNN’s lawyers on how they can prove that Acosta's press pass was revoked specifically because of the content of Acosta’s reporting rather than based on his behavior.
“Until this point, they took no action,” U.S. District Judge Timothy J. Kelly said in a question to CNN’s lawyer, Theodore J. Boutrous, Jr. “What triggered a content-based response here as opposed to all those other months?”
Kelly said he wasn’t sure how to weigh the statements CNN’s lawyers wrote in their court filings because those could’ve referred to different coverage from a number of different reporters. He asked Buttrous why, if this was specifically about Acosta’s reporting and not about his behavior on that specific day, after months of insults against CNN, the president waited until that day to bar him.
“This was a bad day for the president,” Boutrous said. “It was the day after the midterms.”
Boutrous called Trump “the most aggressive, dare I say rude person in the room, and I’m not being critical,” and said Trump “establishes the tenor and tone of these press conferences.”
“Trump wants it to be a free-for-all, that’s his prerogative,” Boutrous said.
The judge also asked whether the White House could act differently to reprimand Acosta without taking away his pass in full — something like not allowing Acosta in briefings with the president but letting him on White House grounds.
The lawyer said that suggestion would still be a violation of First Amendment rights.
The administration maintains that Acosta’s credentials were taken away because he “disrupted the fair and orderly administration of a press conference during an exchange with the president,” Department of Justice lawyers wrote earlier in a brief arguing on behalf of the president.
The DOJ attorneys also denied that the president revoked Acosta’s credentials because of reporting from Acosta and CNN that the White House didn’t like, despite the president’s open criticism of CNN as “fake news” and an “enemy of the people,” as well as calling Acosta a "disgrace."
“Mr. Acosta’s decision to engage in conduct that disrupts press events and impedes other reporters from asking questions provides a more-than-sufficient reason for revoking his hard pass,” the president’s attorneys wrote.
“Acosta continued his refusal to permit another journalist to ask a question, ignoring both the stated wishes of the President and the efforts of a staffer tasked with helping to manage an event,” they wrote.
The brief focused largely on Acosta’s “disrupt[tions]” during the press conference rather than a previous explanation by White House press secretary Sarah Sanders, which CNN promptly denied, that Acosta had placed his hands on an intern who tried to take away his microphone.
Trump’s attorneys have also argued that the decision to revoke Acosta’s access does not violate the First Amendment, which protects the freedom of the press and prohibits the government from retaliating against individuals who speak out, because the First Amendment doesn’t “restrict the president’s ability to determine the terms on which he does, or does not, engage with particular journalists.”
The White House has made a similar argument in days past: "No journalist has a First Amendment right to enter the White House," the White House said.
Trump’s attorneys argued it would be “extraordinary” for the court to decide to “directly police access to the secure White House complex where the president lives and works, as well as to dictate who the President must invite to press events.”
Many individual journalists who attended a press conference on the matter shared personal accounts and spoke out in his defense after Acosta’s credentials were revoked.
Major news outlets also joined together to issue a statement in support of Acosta and CNN Tuesday and said they would be filing briefs in the court case.
“Whether the news of the day concerns national security, the economy, or the environment, reporters covering the White House must remain free to ask questions. It is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons,” read a statement issued by The Associated Press, NBC News, FOX News, POLITICO, The New York Times, The Washington Post and more.
“Our news organizations support the fundamental constitutional right to question this President, or any President. We will be filing friend-of-the-court briefs to support CNN’s and Jim Acosta’s lawsuit based on these principles,” the statement continued.
The statement echoed one from the White House Correspondents' Association, which criticized the Trump White House decision and supported CNN.
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