WASHINGTON — CNN may have won a victory against the Trump administration’s systematic attempts to marginalize critics in the press corps, but the White House’s war against journalists may have moved to a new phase — requiring further legal input — with the release of what could be dubbed “Trump’s Rules of Order.”
The U.S. District Court judge who directed the administration to reinstate the press pass of CNN senior White House correspondent Jim Acosta did not say President Donald Trump couldn’t revoke the “hard” passes that allow reporters entry to the White House grounds and press room.
Instead, Judge Timothy J. Kelly focused on the Fifth Amendment issue of due process, saying there had been no clear process that would have given Acosta notice that his actions threatened his pass.
That left the president an avenue for crafting new rules for how reporters will have to act in his presence, reporters he has frequently attacked.
The White House immediately signaled it was already working on the kind of process the judge asked for. It made quick work of it.
CNN said the new rules are:
“Please be advised of the following rules governing future press conferences:
“(1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists;
“(2) At the discretion of the President or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow up has been allowed and asked, the questioner will then yield the floor;
“(3) ‘Yielding the floor’ includes, when applicable, surrendering the microphone to White House staff for use by the next questioner;
“(4) Failure to abide by any of rules (1)-(3) may result in suspension or revocation of the journalist’s hard pass.”
That means the White House could theoretically revoke press credentials for reporters who were too aggressively pressing the president with questions he didn’t like, though that would almost certainly then be challenged again in court.
The White House also said it was fully restoring Acosta’s press pass, so CNN dropped its lawsuit.
In an interview with Fox News, Trump said that now with the rules in place, if Acosta “misbehaves” they would “throw him out” or perhaps pull the plug on the press conference altogether.
‘Decorum’ May Not be Enough
While George Washington University public interest law professor John Banzhaff agreed the judge’s ruling is no First Amendment victory, he also said those who dismiss its significance with the argument that “all the White House is now required to do is to provide Acosta [or other journalists] some kind of little hearing, perhaps just a trumped up one, and then he can be expelled” also miss the mark.
Trump also threatened to prevent reporters from appearing on camera, suggesting that would cut down on perceived grandstanding. “I think one of the things we’ll do is maybe turn the camera off that faces them because then they don’t have any air time, although I’ll probably be sued for that,” the president said, though that was not in the rules the White House put out.
As to the kind of persistent grilling Acosta was censured for: “You know, you can’t keep asking questions,” he told Chris Wallace on Fox News Sunday. The new rules reflect that view.
But that is the near-term legal issue — the rules are now out, theoretically fulfilling that court directive. But if they prove too restrictive or are used to chill speech, back to court go journalistic organizations.
The government can only restrict speech if it serves a compelling government interest, and Banzhaff said it would be hard to convince a judge, Kelly or otherwise, that prohibiting follow-up questions — even if that wasn’t “decorous,” in the White House’s view — is such an interest.
“The White House Correspondents’ Association had no role in crafting any procedures for future press conferences,” WHCA president Olivier Knox said. “For as long as there have been White House press conferences, White House reporters have asked follow-up questions. We fully expect this tradition will continue.”
Compelling Reasons Required
The longer-term issue is that, as CNN and most other outlets argue, the president can’t deny access to the White House for other than compelling reasons, and persistent, even badgering, journalists trying to get the president to answer tough questions do not qualify as such.
They said the actions of the president, press secretary Sarah Sanders, chief of staff John Kelly and others in denying that access are unconstitutional. “The ability of the press to question vigorously and regularly elected officials and to report freely on the activities of these officials is fundamental to our democracy,” the WHCA said in an amicus brief supporting CNN.
In court, the Trump administration argued that reporters have no “right,” First Amendment or otherwise, to be on the White House grounds.
CNN attorney Ted Boutros pointed out on CNN’s Reliable Sources that if the president is concerned about people being rude — as he said to Fox’s Wallace in the interview — that Trump himself has set that tone.
That was seconded by Dan Shelley, executive director of the Radio Television Digital News Association: “We are in Nixonian times on steroids. If the White House insists on decorum, then it has to lead by example and observe decorum itself.”