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Trump seeks to land blow against media in court fight with CNN

POLITICO logo POLITICO 11/15/2018 By Michael Calderone and Jason Schwartz
President Donald Trump points at CNN's Jim Acosta and accuses him of "fake news" during a White House news conference on November 7, 2018. © Kevin Lamarque President Donald Trump points at CNN's Jim Acosta and accuses him of "fake news" during a White House news conference on November 7, 2018.

Donald Trump sought Wednesday to land a massive blow in his long-fought battle against the news media, with administration lawyers asserting in court that the president could bar “all reporters” from the White House complex for any reason he sees fit.

The sweeping claim, which came in the first public hearing over CNN’s lawsuit to restore correspondent Jim Acosta’s White House credentials, could have a dramatic impact on news organizations’ access to government officials if it is upheld in court.

CNN argued in its lawsuit filed Tuesday that the White House infringed on Acosta's First Amendment rights by revoking his access in response to a dispute over a press conference last week.

But Trump’s lawyers replied Wednesday in a legal filing that he has “broad discretion” to police journalists’ access to the White House.

“If the president wants to exclude all reporters from the White House grounds, he has the authority to do that,” Deputy Assistant Attorney General James Burnham said during the hearing in the U.S. District Court for the District of Columbia. “There’s no First Amendment right.”

Judge Timothy Kelly postponed until Thursday a decision on whether to at least temporarily restore Acosta’s press pass. But the arguments Wednesday represented a significant escalation in Trump’s fight against the media, with more than a dozen news organizations, including POLITICO, weighing in on CNN’s side.

Trump has long argued that coverage of his administration is unfair, and CNN has been a favorite target. Even before he took office, the president referred to Acosta as “fake news” at a press conference and refused to take questions from him. The White House also has substantially curtailed the number of briefings by press secretary Sarah Huckabee Sanders.

But reporters have retained access to the White House and traveled with the president, and before last week, revoking a journalist’s hard pass — the badge that lets them enter and exit the complex freely — was virtually unheard-of.

The White House said last Wednesday it was pulling Acosta’s access after he repeatedly tried to ask Trump questions at a press conference, even after the president dismissed him, and briefly refused to let a White House aide pull a microphone out of his hand. CNN on Tuesday asked a judge to temporarily restore Acosta's credentials and declare that the administration's actions were unconstitutional, saying Trump was punishing the network for its coverage of him and not for any action on Acosta’s part.

Ted Boutrous of Gibson and Dunn, who represented CNN and Acosta, said Wednesday that the White House’s decision was “part of a campaign” against Acosta, citing previous tweets and incidents in which Trump had insulted the reporter. He said under the White House’s logic, the president could bar reporters for any reason, including a “fit of pique.”

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He also argued that Acosta, who was present for the hearing, was not afforded “due process” because he was not told his pass would be revoked beforehand or given a way to appeal the decision before he was prevented from entering White House grounds. He requested a two-week preliminary return of Acosta’s pass while the process moved forward.

A 1977 D.C. Circuit court ruling held that the government cannot deny a White House hard pass “arbitrarily or for less than compelling reasons” and must follow a clear process to do it. Kelly noted during the hearing that he would be bound by that court’s decision in issuing a ruling, and Boutrous cited the case repeatedly in his arguments.

Burnham, arguing for the White House, acknowledged that the administration had dropped its initial argument against Acosta: That he had inappropriately touched a White House aide who tried to take a microphone away from him at the press conference.

But he said Acosta’s behavior at the press conference still justified his expulsion, saying his repeated attempts to question the president after Trump tried to move on were “disruptive.” And in response to questions from Kelly, he said the administration would be justified in pulling a hard pass because of disputes over reporting, saying barring a reporter from a press conference was no different than refusing to grant them a private interview.

Kelly, a Trump appointee, seemed skeptical of some of CNN's arguments and appeared to agree that Acosta had been disruptive at the press conference. Boutrous responded that Trump set a tone of rudeness. “He is the most aggressive, dare I say rude, person in the room,” Boutros said. “[If] President Trump wants it to be a free-for-all, that’s his prerogative.”

The White House argued in its legal filing Wednesday that because it has granted hard passes to many other CNN employees, the network cannot say its coverage led to Acosta’s expulsion. The 28-page document mentioned six times that 50 CNN employees have hard passes. Boutrous pointed out that most of those employees are technicians and photographers, part of the large staff a TV network maintains to cover events live at the White House.

Reporters have denounced the decision to pull Acosta's access. Thirteen news organizations including Fox News, NBC and POLITICO announced Wednesday they would file amicus briefs supporting CNN's lawsuit.

"It is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons. Our news organizations support the fundamental constitutional right to question this President, or any President," a joint statement from the news organizations said.

Meanwhile, on CNN, coverage appeared to be business-as-usual Wednesday.

CNN White House reporters Jeff Zeleny and Kaitlan Collins reported live from outside the White House on the latest West Wing personnel turmoil, neither of them mentioning the court hearing playing out across the town.

“In many ways, we’re compartmentalizing our coverage,” a CNN source told POLITICO. White House reporters will continue focusing on what’s happening at the White House, this person said, while other CNN journalists cover the lawsuit.

“The president of the United States is the most important person we cover,” the source added. “We will cover the president as we always have. We will cover him thoroughly. It’s business as usual as our coverage goes.”

A second CNN source said network president Jeff Zucker believes the press access fight is “an important story” but isn’t over-covering it as “he wants to be very careful not to weaponize the network.”

CNN appeared to focus more Wednesday on wildfires in California and post-midterms fallout in Washington than the lawsuit. But the network did turn to chief media correspondent Brian Stelter for updates and Jeffrey Toobin for analysis on the court proceedings.

White House officials, meanwhile, have largely been tight-lipped about the lawsuit, although Trump told the Daily Caller in an interview published Wednesday that Acosta was “bad for the country.”

And the president’s 2020 reelection campaign sent out a fundraising email asking recipients whether they think the White House made the right decision to revoke Acosta’s pass.

“President Trump will NOT put up with the media’s liberal bias and utter disrespect for this Administration and the hardworking Americans who stand with us,” the email read.

Matthew Choi contributed to this report.

CORRECTION: The title of Deputy Assistant Attorney General James Burnham was incorrect in an earlier version of this article.
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