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A federal judge is expected to rule today on CNN's lawsuit to get Jim Acosta his press pass back. CNN is suing President Trump and other White House officials, saying they acted unconstitutionally in stripping the White House correspondent of his pass. The network wants a temporary restraining order while this case plays out. As NPR legal affairs correspondent Nina Totenberg reports, Judge Timothy Kelly, a Trump appointee, heard two hours of argument late yesterday.
NINA TOTENBERG, BYLINE: Judge Kelly did not tip his hand. But he repeatedly seemed to suggest that since Trump has long attacked CNN, calling its coverage fake news, Acosta was stripped of his press pass for a different reason, namely because he'd refused to sit down when told to and been rude at the press conference on November 7. CNN lawyer Theodore Boutrous Jr. replied that it was Trump who was the most aggressive, dare I say, rudest person in that room. If asking follow-up questions or challenging the president was grounds for being stripped of a press pass, at least 10 other reporters would have lost their press passes, too.
Judge Kelly - what's your position on the allegation that Acosta put his hands on a press aide to keep her from taking the microphone? That is false, replied Boutrous, as is demonstrated by the fact that the Trump administration has now abandoned that claim in its legal papers. Judge Kelly - let's assume I agree with you. What's the importance of that? Answer - it destroys the White House's credibility as to why the press pass was removed at all. There's no argument here that Jim Acosta is any danger to the president's safety, Boutrous said, adding that Trump didn't have to call on Acosta in the first place.
Arguing on behalf of President Trump, Deputy Assistant Attorney General James Burnham contended that the president has broad discretion to strip any reporter of a White House press pass. Nobody would contend that the president can't select which reporters he'll grant interviews to, said Burnham. And a press conference is just an interview with a hundred people.
Judge Kelly - is it the White House's position that the president would be entitled to say, we don't like your reporting, so we're pulling your press pass? Yes, replied Burnham. There's no right of access to the White House. Moreover, he observed, CNN has 50 other reporters who have White House passes. Judge Kelly - what's your justification for stripping Acosta's press pass? The standard, Burnham said, is whether the president believes that a reporter is disorderly or rude or grandstanding. But pressed by the judge, Burnham conceded he knew of no other such case.
In rebuttal, CNN lawyer Boutrous called the Trump administration's view of the First Amendment warped. There's no First Amendment doctrine that because there are lots of other reporters, you can ban one. Maybe that's the one reporter who will break a story wide open. And if the standard is that the president believes a reporter has been disorderly, said Boutrous, that's no standard because it gives the president standardless discretion. Nina Totenberg, NPR News, Washington.
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