The Judge Rules; The Fight May Continue

CNN and its White House Correspondent Jim Acosta have decisively won the first round in what could be a long running fight between Donald J Trump and the First Amendment to the U S Constitution.

Federal Judge Timothy  Kelley (nominated for the bench by Trump last year) has granted a temporary restraining order against Trump’s  lifting of Acosta’s White House pass and Acosta has returned to work in the press room for now.

Make no mistake about it. Trump’s action strikes at the entire press corps as a whole and  at the First Amendment to the U S Constitution and its commandment that Government can not abridge the freedom of the press.

But unless Trump accepts  this ruling as final, the fight is far from over. If Trump appeals the ruling, Acosta stays in only temporarily pending final judgement by higher courts (SCOTUS, are you listening?).

Judge Kelly dodged the central issue – the First Amendment – basing his decision on the Fifth Amendment requiring  harmful Government decisions against individuals  only be taken after a “due process” in reaching them.

Kelley said the White House’s decision-making was “so shrouded in mystery that the government could not tell me . . . who made the decision.” That was somewhat disingenuous even if the record was silent on the subject. Of course it was Donald J. Trump, undoubtedly in a white hot rage, who ordered Acosta’s pass pulled.

White House press secretary Sarah Huckabee Sanders in a statement tried to soften the Judge’s decision by saying “Today, the court made clear that there is no absolute First Amendment right to access the White House.”

Nice try,  Sarah. The judge did sat that but while dodging the First Amendment issue in this case the Judge added that if Trump opened up the White house to reporters as a group (as he has) the First Amendment issue does apply.

Sanders deliberately tried to leave the impression with the unwary reader that the judge had ruled against CNN & Acosta on  the First Amendment and that is simply not true. If the case goes forward a higher court will almost certainly have to rule on the First  Amendment’s application here.

But it was what else Sander’s said in her statement that is so alarming.

She said “In response to the court, we will temporarily reinstate the reporter’s hard pass. We will also further develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.”

Ah, “decorum” at the White House…rules and processes to ensure fair and orderly press conferences in the future” and what might that be?

Now, no one can really complain about trying to make a press conference “fair and orderly”depending on what that means. Before the Reagan Administration, when the President finished an  answer we White House reporters all jumped to our feet and in a huge cacophony shouted  in unison “Mr. President, Mr.President…”, in an attempt to gain recognition.

That was both unseemly and counter productive for both the press and the  president. And I don’t recall any of us objecting when President Reagan’s staff decreed no more shouting, raise you hand and stay seated until called on.

But what about a rule from this White House that might say “one question only and if you try to ask a follow up we lift your pass.” So that if the question is Acosta’s  “Why do you call it a Caravan” and Trump answer’s “that’s my opinion” that’s it, and what have we learned about his thinking on the subject? Nothing.

But he doesn’t have to dodge and weave in an effort to give reasons for his opinion that might not make any sense to the public

Back in 1999, I asked  President Clinton at a news conference if Juanita Brodderick’s claim he had raped her was not true, what was his relationship with Ms. Broadrick, if any.

He replied that his attorney David Kendal had spoken to the subject and he would have no comment. To which I asked “But can’t you just deny it, Sir?” To which he replied “see my attorney.” Now, he didn’t answer the questions directly but television watchers may have decided they had learned something anyway.

I’m sure President Clinton did not like my question, still there was no effort by anyone at the White House to retaliate against me. However, in the future if Trump decides that an “orderly press conference” means that if a reporter were to ask such a terrible question like that (and it was terrible , I admit) the reporter’s pass could be lifted, well both reporters and the public would  pay a heavy price.

The Reporters Committee For Freedom of the Press (RCFP)  filed a brief in Court supporting CNN and Acosta which put it this way:

“In forcefully and unflinchingly questioning the President, Acosta was engaged in precisely the kind of constitutionally protected newsgathering and questioning of the government that the First Amendment safeguards and upon which our democracy depends.

Nixon tried to demonize and neuter the press and it didn’t save him.

Trump is fiercely trying to do the same thing. And it won’t save him.

The facts and the truth will prevail.

But only if Freedom of the Press is preserved









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