Tuesday, November 20, 2018

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Acosta Files: Careful that you don't get what you wished for

As you know Jay Acosta and CNN sued - and won - to get his White House press pass back. The judge in his ruling didn't rule on Acosta's right to free speech, but that his supposed 5th amendment rights were violated. The ruling dinged the White House for not giving him advanced knowledge and allowing him to defend himself against the charge of being disruptive - and violent- during press briefings.

So....

The transcript of the Nov. 16 court session in which Kelly delivered his oral ruling was released in a group of court papers on Monday. Kelly declared that the White House could not eject Acosta without first providing him due process — specifically, notice of the revocation of his press pass, a chance for Acosta to respond, and a written decision.

In short, the judge said to the White House: You can't throw out a reporter without going through a process. But if you go through a process — which you, the White House, can design — then you can throw the reporter out. In the end, it could be that Kelly's ruling will make it easier for the White House to oust reporters in the future — and to make the decision stick.

Throughout the court session, Kelly referred to the only real precedent in the Acosta matter, a 1977 case from the U.S. Circuit Court of Appeals called Sherrill v. Knight. In that case, the court ruled that the White House — specifically the Secret Service — could not deny a press pass to a "bona fide journalist" without due process. The court defined due process as "procedures whereby an applicant is given notice of the evidence upon which the Secret Service proposes to base its denial, [and] the journalist is afforded an opportunity to rebut or explain this evidence, and the Secret Service issues a final written decision specifying the reasons for its refusal to grant a press pass."

In court, Kelly told lawyers for CNN and the government that he would use Sherrill as a guide in the Acosta matter. In his view, the due process arrangement outlined in Sherrill should apply to the Trump White House's treatment of Acosta or any other White House reporter. "The court in Sherrill held that this process must include notice, an opportunity to rebut the government's reasons, and a written decision," Kelly said.

The judge's clear implication was that if the White House takes those actions if it jumps through those hoops in the future, it can expel a reporter without raising due process concerns.

So the White House has created such rules and procedures as the judge indicated.

The White House has halted efforts to bar CNN journalist Jim Acosta but has introduced a wave of new rules for reporters attending news conferences.

According to a letter sent to Mr Acosta, reporters will now only be allowed one question each if called on at future news conferences and are only allowed to ask follow-up questions at the discretion of the US leader.

Guidelines state journalists are compelled to physically surrender microphones if Mr Trump has not granted a follow-up question.

Failure to abide by the new guidelines could result in reporters losing their passes.

It comes after the White House previously accused Mr Acosta of manhandling an intern who tried to take his microphone away as he questioned Donald Trump during a heated news conference. He was subsequently banned from the White House.

Mr Trump's administration warned his credentials could be pulled again if he failed to adhere to the new guidelines for journalists.

This will no doubt cause friction between Acosta and other journalists in the room. It reminds me of the military where one guy would screw up and the rest of us would pay. Mr. Acosta's rights aren't being violated, he's simply an ass who shows his ass every chance he gets.

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