The White House on Monday backed down from its threats to revoke Jim Acosta’s press pass.
“Having received a formal reply from your counsel to our letter of November 16, we have made a final determination in this process: your hard pass is restored,” the White House said in a new letter to Acosta. “Should you refuse to follow these rules in the future, we will take action in accordance with the rules set forth above. The President is aware of this decision and concurs.”
The letter detailed several new rules for reporter conduct at presidential press conferences, including “a single question” from each journalist. Follow-ups will only be permitted “at the discretion of the President or other White House officials.”
The decision reverses a Friday letter by the White House that said Acosta’s press pass could be revoked again right after a temporary restraining order granted by a federal judge expires. That letter — signed by two of the defendants in the suit, press secretary Sarah Sanders and deputy chief of staff for communications Bill Shine — cited Acosta’s conduct at President Trump’s November 7 press conference, where he asked multiple follow-up questions and didn’t give up the microphone right away.
“You failed to abide” by “basic, widely understood practices,” the letter to Acosta claimed.
CNN won the temporary restraining order earlier on Friday, forcing the White House to restore Acosta’s press access for 14 days. Judge Timothy J. Kelly ruled on Fifth Amendment grounds, saying Acosta’s right to due process had been violated. He did not rule on CNN’s argument that the revocation of Acosta’s press pass was a violation of his and the network’s First Amendment rights.
Many journalists have challenged the administration’s actions against Acosta, pointing out that aggressive questioning is a tradition that dates back decades.
But Trump appeared eager to advance an argument about White House press corps “decorum,” no matter how hypocritical.
Since the judge criticized the government for not following due process before banning Acosta on November 7, the letter looked like an effort to establish a paper trail that could empower the administration to boot Acosta again at the end of the month.
The letter gave Acosta less than 48 hours to contest the “preliminary decision” and said a “final determination” would be made by Monday at 3 p.m.
CNN’s lawyers had signaled a willingness to settle after prevailing in court on Friday. Ted Boutrous, an attorney representing CNN and Acosta, said they would welcome “a resolution that makes the most sense so everyone can get out of court and get back to their work.”
But in a new court filing on Monday morning, CNN’s lawyers said the defendants “did not respond to this offer to cooperate.” Instead, the letter from Shine and Sanders was an “attempt to provide retroactive due process,” the filing alleged.
So CNN and Acosta asked the judge to set a schedule of deadlines for motions and hearings that would give the network the chance to win a preliminary injunction, a longer form of court-ordered protection to Acosta’s press pass.
They were seeking a hearing “for the week of November 26, 2018, or as soon thereafter as possible,” according to the court filing.
A preliminary injunction could be in effect for much longer than the temporary restraining order, thereby protecting Acosta’s access to the White House.
In a response Monday morning, government lawyers called the CNN motion a “self-styled ’emergency'” and sought to portray the White House’s moves as a lawful next step.
“Far from constituting an ’emergency,’ the White House’s initiation of a process to consider suspending Mr. Acosta’s hard pass is something this Court’s Order anticipated,” they said.
The DOJ lawyers continued to say that the White House had made “no final determination” on Acosta’s access, and asked the court to extend its own deadline, set last week, for a status report due at 3 p.m. Monday, in light of the White House’s separate self-imposed deadline for the Acosta decision.
At lunchtime, Kelly granted the government’s request and extended the status report deadline to 6 p.m. Monday.
The case was assigned to Judge Kelly when CNN filed suit last Tuesday. Kelly was appointed to the bench by Trump last year, and confirmed with bipartisan support in the Senate. He heard oral arguments on Wednesday and granted CNN’s request for a temporary restraining order on Friday.
“We are disappointed with the district court’s decision,” the Justice Department said in response at the time. “The President has broad authority to regulate access to the White House, including to ensure fair and orderly White House events and press conferences. We look forward to continuing to defend the White House’s lawful actions.”
Trump seemed to shrug off the loss, telling Fox’s Chris Wallace in an interview that “it’s not a big deal.”
He said the White House would “create rules and regulations for conduct” so that the administration can revoke press passes in the future.
“If he misbehaves,” Trump said, apparently referring to Acosta, “we’ll throw him out or we’ll stop the news conference.”
“This is a high-risk confrontation for both sides,” Mike Allen of Axios wrote in a Monday item about Trump’s new targeting of Acosta. “It turns out that press access to the White House is grounded very much in tradition rather than in plain-letter law. So a court fight could result in a precedent that curtails freedom to cover the most powerful official in the world from the literal front row.”
