Judge to rule Thursday on CNN dispute with Trump

Judge to rule Thursday on CNN dispute with Trump
© Greg Nash

The federal judge overseeing CNN's request for an order forcing the Trump administration to temporarily reinstate press credentials for the network's chief White House reporter Jim Acosta said he will rule on the request Thursday afternoon.

Judge Timothy Kelly of the U.S. District Court in Washington, D.C., seemed to agree during arguments in court Wednesday that the White House decision surrounding Acosta had raised some constitutional issues.

But Kelly, a Trump appointee, appeared unconvinced that the administration had revoked Acosta's hard pass solely because it didn’t like the questions he was asking of the president during a press conference last week.

ADVERTISEMENT

Kelly said the record suggests Acosta’s press pass was revoked because of his behavior, noting that Trump called him "rude" after he refused to yield the microphone to another reporter during a contentious exchange with the president.

Theodore Boutrous, one of four attorneys representing CNN and Acosta, however, argued "rudeness is code word for 'I don’t like you asking tough questions.'”  

DOJ lawyer James Burnham countered that Acosta's credentials were revoked for grandstanding and refusing to surrender the microphone so another reporter could ask a question.

But Boutrous told Kelly every other reporter continued to ask follow-up questions after the President tried to cut them off. He argued the president is who sets the tenor and tone of the press conferences.

“He’s the most aggressive one, dare I say, rude person in the room,” he said.

After last week's press conference, White House press secretary Sarah Huckabee Sanders accused Acosta of “placing his hands” on the White House staffer who tried to take the microphone away, but the government did not maintain that claim Wednesday as a reason for stripping Acosta of his White House press pass. 

Kelly asked the government how he should square this case with the D.C. circuit’s 1977 ruling in Sherrill v. Knight. In that case, the court said journalists can’t be denied access to White House press facilities for arbitrary or less compelling reasons. At a minimum, journalists must be notified and given a chance to refute the decision.

“I think it’s clear disruption of a press conference is not an arbitrary reason,” Burnham said.

But Kelly suggested Acosta should have been notified and given a chance to respond. 

“I think what happened here is good enough for due process,” he said.

Kelly asked the government who made the determination to take Acosta’s pass, but Burnham said it wasn’t clear from the record. Kelly appeared surprised the government had nothing to add. 

During Wednesday's proceedings, Kelly grappled with the unusual nature of the dispute, asking Burnham if the White House has ever revoked a reporter’s press credentials before. 

“Not to the best of my knowledge,” he said.

“How should I consider the unprecedented nature of what’s happening here?” Kelly asked in return.

CNN and Acosta asked Kelly in court to issue a temporary restraining order that forces the administration to reinstate Acosta’s credentials for the length of the order, which is 14 days, then rule later on their request for a preliminary injunction to reinstate his credentials while the parties argue the case.

The network has argued that the administration's decision violated the First Amendment rights of both CNN and Acosta.

Kelly said he will take the arguments of both sides under advisement and will issue his decision from the bench on Thursday at 3 p.m. 

-- Updated 7:15 p.m.