Why Does it Matter if Jim Acosta’s Press Pass Can Be Yanked by Trump?

Jim Acosta of CNN asks Trump tough questions.  Often, they are questions that Trump doesn’t want to answer.  Since Trump likes to create divisiveness and disruption as well as stay ever present in the news, Acosta also fulfills Trump’s need to keep a bubbling pot of divisiveness boiling on the stove whenever he needs it handy for distraction.  By attacking Acosta and CNN Trump gets to advance his narrative about the fake news being out to get him and being terribly unfair to him.  Trump gets a lot out of this ploy.  His base laps it up.  Trump stays front and center in the news.  And Acosta/CNN becomes his foil or punching bag.  But recently Trump raised the level of his attack on the press by yanking Acosta’s press pass.

In a press briefing after the midterm election, Acosta asked Trump to comment about something that Trump did not want to talk about.  Trump was probably super grumpy because the GOP got a big can of whoop ass in the midterms and it was his fault they did.  When Acosta asked him about the midterms Trump probably experienced that as a gut punch.   Trump verbally assaulted Acosta back saying, “Let me run the country. That’s enough.  You are a rude, terrible person.” 

Trump was visibly annoyed, ordering Acosta to stop asking him the offending questions.  At that point a female White House aide took it upon herself to try to rescue the president from this situation by trying to grab Acosta’s mic away, trying to wrestle it out of his grip.  That became the basis, the bogus basis, for what came next, namely, stripping Acosta of his “hard” press pass. 

The White House claimed, falsely, that Acosta assaulted or manhandled the female aide.  To support that false claim, they showed a video of the incident that Infowars had doctored by cutting out Acosta’s “pardon me, ma’am” and speeding it up to make it look as if Acosta had done something aggressive to the aide, when in fact it was the aide who was trying to physically wrestle the microphone from Acosta as he maintained his hold of it. 

After this incident, Trump summarily revoked Acosta’s press pass without giving him a chance to have a hearing so he could tell his side of the story.  Trump acted as a king or monarch would.  He does that a lot.  Trump thinks that as president he should have the power to get what he wants and do and say whatever he wants.  He’s the boss.  In fact, he seems to envision himself as something of a mob boss who has the power to demand loyalty to HIM from everyone in government.  He seems to think that everyone works for HIM, instead of civil servants working for the American people in the interests of the country with a mission of upholding our constitution.

CNN filed a lawsuit on November 13, 2018, citing a 1977 D.C. Circuit Court case: Sherrill v Knight.  This case has held that there is a protection afforded for newsgathering under the First Amendment guarantee of freedom of the press.  Access to the White House press facilities are publicly available as a source of information and they may not be denied arbitrarily or for less than compelling reasons.  Sherrill says that newsmen and the public at large have an interest in access to this information from the White House briefings and that restrictions “should not be more arduous than necessary.” The protection extends to Jim Acosta personally as CNN’s chief White House correspondent under a plain reading of the Sherrill decision.

CNN asked the DC court for a preliminary injunction.  They were, in essence, saying, “Judge Kelly, make the White House give Jim Acosta back his hard pass right away so that he can come to press briefings in the White House.  Jim did not get due process since the pass was yanked and he never got to tell his side of the story.”  There are a few things that need to be established for a preliminary injunction to be granted.  1) There is a substantial likelihood of success on the merits.  2) There is a substantial threat of irreparable harm.  3) There is a need to act fast to avoid further injury.  4) The injunction serves the public interest. 

Judge Kelly determined that CNN established all four elements.

On November 16 the judge said that even if CNN sent a different reporter to cover the White House briefings, Jim Acosta would still be harmed, so that is not a solution to this problem.  By banishing him from the briefings Trump interfered with Acosta’s rights as chief White House correspondent for CNN.  Judge Kelly ruled that Acosta had to get his pass back.  The injunction was granted.  CNN won that round.

The case has not yet been heard on the merits however.  Given the Sherrill case, it looks almost certain that when Judge Kelly does hear the case on the merits, CNN and Jim Acosta will win.  But if the case goes up to the Supreme Court and they agree to hear it (they don’t agree to hear every case),  Gorsuch, Kavanaugh, and Thomas are three of the nine justices who might make their determination in this matter from a political perspective instead of a legal one.  In short, they might try to please Trump.  I believe Justice Roberts would be more likely to care about precedent and the rule of law because he is said to be worried about the perceived politicization of the Supreme Court.  But we don’t know for sure.  There is reason for concern. 

Without a doubt, the Supreme Court has been politicized by Trump.  The Kavanaugh hearing exposed the extent to which Trump and the Republicans would go to get a political operative on the Supreme Court.  What we do not know yet is whether these right-wing judges on the Supreme Court will follow legal precedent or be infected by politics.  If they follow precedent, CNN will win on the merits.  If they do not all of us will lose.

Many conservative lawyers are becoming more and more concerned about Trump’s violations of the rule of law.  Kelly Ann Conway’s husband, George Conway, is one of those conservative lawyers who is getting worried.  Conway has been eager to have the Federalist Society pick the most right-wing judges possible to appoint to the federal bench.  But he and other conservative lawyers are becoming more deeply troubled that Trump is subverting the rule of law.  And they decided it is time to push back. 

They recently created a new group, “Checks and Balances” which will speak out about the threat Trump poses to the rule of law.

One of the members of the newly formed group had this to say:

“It’s important that people from across the political spectrum speak out about the country’s commitment to the rule of law and the core values underlying it — that the criminal justice system should be nonpartisan and independent, that a free press and public criticism should be encouraged and not attacked.”

“These are values that might once have been thought so basic and universally accepted that they didn’t need defending, but that’s no longer clearly the case.”  

This development is very important.  With a president who yearns to be a mob boss and who attacks his opponents mercilessly on Twitter and from the bully pulpit, any and all groups that push back or punch back to restrain and call out this president are necessary for the continuation of our democracy.  Whether our democracy survives intact in the era of Trump remains to be seen. 

Starting in January the House will be in the hands of the Democrats.  There will be numerous efforts to expose, restrain, check and balance Trump along with this group of lawyers who are vowing to protect our democracy from serious damage.  There are other groups trying to restrain this president, such as CREW, the ethics watchdog, but many of the remedies cannot force the president to behave if he doesn’t want to. 

We the People need to stay very active and express our will.  The midterm House win was the beginning.  We flexed our muscles but now we need to build on that.

Our country is founded on the belief that a president is not a king.  A president is not a mob boss.  He is subject to the rule of law.  Imagine what would happen if Trump could pull not only Acosta’s press pass, but the passes of every African American female reporter he didn’t like.  Trump has shown antipathy for black women in general and black female reporters specifically.   He has insulted and threatened April Ryan, Abby Phillip, and Yamiche Alcindor, three outstanding black journalists.  What if he could banish all of them from his press briefings?   

What is hanging in the balance with Jim Acosta’s press pass is larger than his press pass.  What is hanging in the balance is whether the president is subject to the rule of law and whether free speech and the power of the free press will be limited by a president who would be king.

If Jim Acosta gets to keep his press pass that will mean a win for free speech and the rule of law.  Let’s hope he keeps it.  In addition, I hope going forward that every news outlet punks the president by sending ONLY black female reporters to cover his press briefings.  Oh, and Jim Acosta.

 UPDATE:  Since this post was published, the White House has backed away from it’s untenable legal position and CNN has withdrawn its lawsuit.  Instead, the White House has written new rules that require that reporters only ask one question and then yield the floor, meaning give up the control of the mic.  Follow up questions will be granted at the discretion of the President or other White House officials.  Failure to abide by these rules may result in suspension or revocation of the journalist’s hard pass.  (Which is a set up for another round of this fight in the future.) I guess this is the way they are saving face after they claimed certain reporters created a loss of decorum.  Decorum?  You want more decorum?  Get rid of Trump.