3 legal takeaways from the White House’s short-lived stand against Jim Acosta

The Trump administration again thrust the Constitution into the national spotlight, with it’s short-lived stand against CNN reporter Jim Acosta.

Faced with a court battle it could very well lose, the White House ultimately backed down Monday, reinstating Acosta press credentials.

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After a recent heated exchange with President TrumpDonald John TrumpHouse Republicans move to block Yemen war-powers votes for rest of Congress Trump says he's considering 10 to 12 contenders for chief of staff Michael Flynn asks judge to spare him from jail time MORE during a press conference, the White House had revoked Acosta’s so-called “hard pass,” which enables immediate clearance to enter the West Wing and other secured areas without obtaining daily approval. The network sued, and a federal judge last week ordered the White House to temporarily reinstate the pass.

CNN dropped the lawsuit when the White House agreed to allow Acosta to regain access, and instituted new guidelines for press conferences.

As with of Trump’s other pokes at the Constitution, this one got at the heart of core democratic norms. 

Here are three legal takeaways surrounding this controversy:

1. Although the judge’s order was a “win” for CNN, the court only issued a temporary restraining order (TRO). The decision itself did not resolve the key issues in the case — what are known as the “merits” of the lawsuit. And because the case was dropped, we can’t know what precedent it could have set. That said, one of the legal requirements for issuing a TRO is a finding that CNN would have likely won its case regarding whether the White House action violated the First and Fifth Amendments and a statute known as the Administrative Procedure Act, which is the primary legal mechanism for holding federal agencies accountable in court. A TRO is extraordinary relief, so the legal threshold for getting one is quite high, and CNN met it here.

2. This case was not about whether the White House has the “right” to decide who gets press passes, or whether individual reporters have a First Amendment “right” to freely enter the White House. As Trump’s lawyers emphasized, dozens of other CNN correspondents also have hard passes enabling them to cover the White House on behalf of the network, and the president can surely grant individual interviews to certain reporters and not others. But the rights protected by the First Amendment belong to Acosta personally — not to the network.

Constitutional rights are about government overreaching — whether, for example, the government should have the power to dictate abortion decisions under the Due Process Clause, to decide whether someone can own a gun under the Second Amendment, or to determine a journalist’s ability to maintain a White House press pass under the First Amendment.

As for the latter, the Supreme Court has long made clear that among the most nefarious of government infringements on free speech is punishing people for their points of view. Acosta passed the Secret Service clearance process for obtaining a hard pass. If Trump pulled the pass because he doesn’t like Acosta’s reporting for CNN (e.g., for embodying the “fake news media," as "the true enemy of the people”), that’s a serious First Amendment problem, unless the White House can offer up a really good reason for it. (The judge was rightly troubled that the identity and rationale of the White House decision-maker here was not clear).

Think about the implications. If reporters in the White House briefing room had to bite their tongues before pushing too hard against the president in order to keep their jobs, the truth about what the government is up to would not come out, and the power of the government relative to the American public would increase substantially.

3. The case was also about the Due Process Clause of the Fifth Amendment because, before the government can take away an individual’s right to life, liberty, or property, it has to provide a fair procedure for making that decision — meaning notice to Acosta and an opportunity for him to be heard.

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For journalists, the loss of a White House hard pass can impact the ability to engage in the profession — which courts have recognized as bound up with the concept of “liberty.” If the White House is going to snatch a correspondent’s hard pass, it has to provide that person with notice and an opportunity to be heard on why he should keep the pass. That didn’t happen here.

It’s possible that the Trump administration’s new rules of etiquette aim to provide that kind of process. But if a correspondent loses her hard pass for violating an etiquette rule going forward—by, for example, asking a follow up question (which seems to be both disallowed and tolerated under the etiquette rules)—the White House would still have to contend with the First Amendment. In Acosta’s case, it hadn’t made any arguments regarding problems with his security clearance, which was a prerequisite to his getting the hard pass in the first place. And it abandoned press secretary Sarah Sanders’ initial claim that Acosta improperly touched a White House intern during the press conference, a claim that the judge also discounted as dubious.

Whether “rudeness” is a sufficient reason to pick off individual journalists from White House access would have become the critical question in such a First Amendment claim. The primary case out of the D.C. Circuit that was relied upon by CNN suggests that the government’s threshold on this front is high — i.e., the denial cannot be “based on arbitrary or less than compelling reasons.” And for its part, the Supreme Court would be hard-pressed to tolerate even a whiff of arbitrary government action around something as fundamental as political or viewpoint-based speech.

A silver lining to this debacle has been the unifying voice of the press. Fox News, for example, issued a statement that “Secret Service passes for working White House journalists should never be weaponized.” In our complicated world — where most legal and political issues are nuanced, with the right outcome cloaked in shades of grey — preserving the ability of the American press corps to sharply question politicians without fear of reprisal is not one of those grey areas.

Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her upcoming book is How to Read the Constitution and Why Now.” Follow her on Twitter at @kim_wehle.