A couple of days ago, we discussed the prospect of CNN suing the Trump Administration over the suspension of CNN’s Jim Acosta’s press credentials after a flair up in a former press conference with President Donald Trump and the refusal of Acosta to surrender the microphone. CNN has now filed its lawsuit and it is basically the claims that we anticipated with one addition: a claim that the move violated the Administrative Procedure Act. As I have said from the outset, I strongly oppose the move by the White House, even though I feel that Acosta went too far in the press conference. However, I still remain a bit more cautious than many commentators on what is being described as a slam dunk of a case.
The First Amendment claim cannot be based on some constitutional right to access. There is no right of access to the White House for the public, as established by the D.C. Circuit in Sherrill v. H. Knight (1977). Moreover, the court reaffirmed that the press does not have a guarantee of access but only that the denial of access cannot be denied “arbitrarily or for less than compelling reasons.” This comes down to whether Acosta’s conduct offered a compelled reason for his suspension when he refused to yield the mike and continued to speak over the President. As I mentioned earlier, the court may have to compare his conduct with past behavior of other journalists. However, the White House is not barring CNN and did not toss others asking the same questions.
The Fifth Amendment claim also only takes you so far. Whatever due process is owed Acosta will be relatively slight on an issue of access. The White House is not saying that he is permanently barred and it makes decisions all the time on access for representatives of different media outfits.
The APA claim may suffer from the same problem. Whatever APA protection that Acosta has in this circumstances would be modest. It will also return the question to the merits. Was it “arbitrary and capricious” to suspend access when a reporters would not yield the floor and continued to speak over the President at a formal press conference? If so, it would be difficult to maintain decorum in such settings. More importantly, what would the APA afford CNN in this circumstance in terms of procedural protections. There might be a notice requirement and written explanation obligation. However, this is still a procedural device.
None of this means that Judge Timothy J. Kelly will not rule for Acosta and CNN. However, it is not the easy case that many have described in my view and could well be a bad case that makes bad law for the media if they lose.
Acostas body language was all the showing signs of escalating aggression. It is the job of the Secret Service to recognize when someone is coming unhinged before they attack. Acosta refused to deescalate and was within striking distance of The President. Is the Secret Service supposed to keep allowing him access and wait until Acosta sucker punches an intern or does something physical? Everytime Acosta or any aggressive violent person is not reigned in with clearly set boundries that is absolute permission to go to the next level.
I have a question Professor Turley about the Judge hearing the case. Since the President himself and his office are I suppose what you would call the defendants in this case, shouldn’t the fact the Judge was appointed by the defendant be some sort of legal or ethical red flag? Shouldn’t he recuse himself, if at the very least just for appearances sake? There are plenty of Federal judges who were not appointed by this defendant so why is one who was appointed by him hearing the case? Wouldn’t it make sense to pick a Federal judge who was appointed by President Bush for instance so we can at least have the appearance of impartiality? Especially since this seems to be more of a personal dispute between the ironically named Mr Acosta and the President?
Chris – the Democrats keep picking judges that were appointed by Obama in the 9th Circus, why can’t Trump have a judge he appointed? 😉
I think you confused my question with some sort of partisan political opinion. I find it troubling in todays world that we cannot at least in this country question something without the immediate opining on the “but the other side does it too” as if everything is either somehow republican or democrat. This question is referring to the President actually the one being sued, not a federal judge deciding on a routine case of law where his ruling may favor one political party but where he is actually hearing a case where the man who appointed the judge deciding the case is also the person being sued.
My day job has me appearing before federal district judges on a regular basis. In Texas, many of those have been appointed by Republican judges. Once these guys make it, they’re in for life, unless they bail for some type of huge-money gig glad-handing and back-slapping at a big-law firm. In almost every interaction, I’m impressed with the preparation, knowledge of the facts and the law, and the “I really do give a f*ck” attitude of the jurists–no matter which temporary occupant of the white house appointed them. (There’s one caveat; one guy in the Northern District of Texas will soon be called back to the home base by Beelzebub, he’s petty, vindictive, malevolent and a bully). I don’t know of Judge Kelly ( I got his name from mespo’s post), and it’s not important enough to google. But never forget that he’s LIFETIME now; he owes no one anything. Without some concrete evidence that he’s a party shill–which would have come out by now–I’m not too concerned with which president appointed him.
response to post by chris
Edit: Republican presidents
To Mark – I get that they are lifetime appointments and that’s why I wonder the choice in this judge given there are plenty of judges not appointed by the defendant in the case who could rule on it I would assume. I would also assume there’s ample information about this judge to whether or not he’s some sort of Trump loyalist or not however I I don’t know, like you know nothing about him nor have I seen too much on him but the question here to me is how did this judge get picked, and why wouldn’t it just for proprieties sake be a different judge who was not appointed by the President since the President is in this very unusual case the actual defendant. This doesn’t seem like business as usual, it seems more like a personal dispute between the two men. In fact I don’t see CNN winning this because I assume not complying with handing over the mic after a few repeated requests to do so could be considered disturbing the peace and certainly while the President may not have answered the question completely or even at all he did take the question and offered a response so at one point the reporter sits down and writes about the response given. I don’t think he’s allowed to badger the President beyond a single followup attempt or two. Once its no, its no and I think he pushed it beyond what would be considered reasonable. Like Professor Turley said I imagine they will have to base it on previous reporters behavior to figure out what is considered reasonable but I don’t remember a member of the press member refusing to hand over a mic when being told to. So it seems to me an impartial judge is going to rule against CNN since it appears Acosta’s behavior could be easily construed as disruptive, It just struck me as odd given the nature of this case which seems almost like a civil dispute between Acosta and the President, that they wouldn’t assign a judge appointed by the defendant, especially recently appointed where its hard to conclude that he doesn’t feel at least some loyalty and hence possible favoritism to his friend that gave him the job.
Correction “Would assign” not wouldn’t.
In the Northern District of Texas, cases are assigned in rotation out of the district clerk’s office. In the rare occasion where the assigned judge has a conflict, then the case is randomized to the next judge. Although federal rules, practice and procedure are remarkably consistent across the system, I can’t comment knowledgeably on the practice where CNN filed.
to chris
On another point–which may serve to illustrate the world in which district judges operate, there’s a joke which goes: “the only difference between a federal district court judge and God is that federal district court judges have more power on Earth.” In real life, they truly wield an awesome measurement of unchecked power. I can’t see such a person owing anything to anyone.
to chris
That is an impressive statement.
Chris – isn’t supposed to be luck of the draw? You are not assigned because you are the best for the case, but because you are next in rotation. However, it is odd how often Democratic judges numbers come up in Hawaii.
The NPC Marky Mark Mark runs the I’m a Texas lawyer script and know lawyer stuff. However, it gets how federal district judges are appointed incorrect. This is for Marky’s programmer, for the next patch.
Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. The names of potential nominees are often recommended by senators or sometimes by members of the House who are of the President’s political party. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. Article III of the Constitution states that these judicial officers are appointed for a life term. The federal Judiciary, the Judicial Conference of the United States, and the Administrative Office of the U.S. Courts play no role in the nomination and confirmation process.
http://www.uscourts.gov/faqs-federal-judges#faq-Who-appoints-federal-judges?
Haha. Rich. You truly are one and the same with crazy georgie.
this is to “I don’t read what anyone else writes, I just make up sh*t as I go along” paulie – georgie
The NPC Marky Mark Mark runs the I’m not really a lawyer and I deny everything I every said script. It is clear the programmer will never read the note I left them.
Mark M, serial slanderer, like miswound clock is right twice
To recap:
a) lifetime tenure federal judges are knowledgeable and competent as a group
b) they are incredibly powerful
see if you can get back on script with the defamation and so forth, you may have the flu or something.
PS stay out of east texas, it’s not a good place for you
Thomas Drake:
“Holding up Trump to unblinking mirror reflecting verdict of early US history. Adams & Federalists went after press & immigrants in 1790s as ‘enemies of the people’ – passed laws including Alien & Sedition Acts, but all backfired. History NOT on his side.”
“Trump Isn’t the First President to Attack ‘Enemies of the People’”
“John Adams and his Federalist Party went after immigrants and journalists in the 1790s. It backfired.”
By Stephen Mihm
November 14, 2018, 7:00 AM CST
https://www.bloomberg.com/opinion/articles/2018-11-14/enemy-of-the-people-trump-isn-t-the-first-to-attack-journalists
My prediction: Judge Kelly is a big firm kinda guy in a high profile judicial job. He’s in a pickle of a case since it’s a free speech right being claimed by a jerk. No judge likes that. It’s a nose holder call. He’s a Trump appointee with a year under his belt on the court. I’m betting he wants a middle ground decision that remands the case for a due process hearing for Acosta on the issue of his behavior and a written decision. We all know how that will turn out by the WH, so given that inevitability, Kelly will probably side with Acosta and stay his order on appeal and let guys above his pay grade make the call.
On the other hand, he’s an Irishman who just saw what the press did to Kavanaugh. There’s a 25% chance he say “nyet” to the press and lets ol’ Jimmy watch the proceedings through the window like that wild Office episode where Michael is banned from Phyllis wedding but decides to jump up to peer through the window.