Making Acosta a Federal Case

Question: What does CNN’s Jim Acosta crave more than anything? If you said “attention,” go to the head of the class. It’s a mystery why the White House has given Acosta way more than that. By yanking his “hard pass” after last week’s press conference (don’t ask who was obnoxious; they all were), Acosta has literally become a federal case. CNN filed suit claiming that its reporter’s First and Fifth Amendment rights were violated. More than a dozen news organizations, including Fox, have filed amicus briefs supporting CNN, and even Trump-friendly Fox News judicial analyst Andrew Napolitano has opined that Acosta has a strong case. Mr. Showboat is just where he wants to be — the center of attention — but thanks to President Trump’s gratuitous swipe, he is also a free-press martyr.

The Legal Precedent That Could Protect Jim Acosta’s Credentials

A 1977 court ruling said that administrations cannot bar correspondents from the briefing room without “due process.”

.. In January 1972, when Sherrill reapplied for White House press credentials, he was again denied without explanation. That’s when the American Civil Liberties Union took his case to federal court. With the ACLU’s help, Sherrill sued the Secret Service for violating his First and Fifth Amendment rights.

By the time a D.C. circuit-court judge ruled in his case in 1977, it had been 11 years after his credentials were originally denied.

.. hen donald trump clashed with Jim Acosta, the chief White House correspondent for CNN, at his post-midterms news conference on Wednesday—and later revoked his press credentials—he most likely knew nothing about the precedent set by the D.C. Circuit Court of Appeals in Robert Sherrill’s case—precedent, experts said, that put the law squarely on Acosta’s side.

“Thank you Mr. President. I wanted to challenge you on one of the statements that you made on the tail end of the campaign in the midterms,” Acosta started, microphone in hand, staring ahead toward the president from the front row of the press conference.

Trump’s lips pursed and then released. “Here we go,” he said, practically breaking the fourth wall.

“If you don’t mind, Mr. President—” Acosta tried.

“C’mon, c’mon, let’s go.” The president let out a half whistle from his mouth and motioned to his rival to hurry up and ask his question.

“—that this caravan was an invasion.”

“I consider it to be an invasion,” Trump replied.

The exchange became testier and Trump’s complexion reddened. “Honestly, I think you should let me run the country. You run CNN. And if you did it well, your ratings would be better,” Trump told the reporter.

Acosta held on to the microphone as a White House intern tried to grab it back from him. “Mr. President, I had one other question, if I may ask, on the Russia investigation,” Acosta said. “Are you concerned that—”

Trump lifted a finger and wagged it from the podium. “I’m not concerned about anything about the Russia investigation, ’cause it’s a hoax.” He walked away from the podium momentarily, readying for his next hit. Acosta gave in and relinquished the mic.

“I’ll tell you what,” the president huffed. “CNN should be ashamed of itself, having you working for them. You are a rude, terrible person. You shouldn’t be working for CNN … You’re a very rude person. The way you treat Sarah Huckabee [Sanders] is horrible and the way you treat other people are horrible. You shouldn’t treat people that way.”

When Acosta returned to the White House grounds later that evening to do a live shot for Anderson Cooper 360°, the Secret Service asked for his hard pass, which he had held since 2013, and confiscated it. They were just following orders, and he understood that; the orders came from higher up. His access was revoked: He was locked out of the Trump White House.

.. To explain why Acosta’s credentials had been revoked, Sarah Huckabee Sanders, Trump’s press secretary, tweeted a highly edited video on Wednesday that appeared to show Acosta hitting the intern who tried to grab his microphone. Sanders wrote on Twitter, “President Trump believes in a free press and expects and welcomes tough questions of him and his administration. We will, however, never tolerate a reporter placing his hands on a young woman just trying to do her job as a White House intern…” Acosta tweeted back, “This is a lie.”

In actuality, the video Sanders shared was doctored and originally posted by Paul Joseph Watson, a British conspiracy theorist associated with the fake-news website Infowars.

.. The White House Correspondents’ Association denounced “the Trump Administration’s decision to use US Secret Service security credentials as a tool to punish a reporter with whom it has a difficult relationship.”

.. The conservative blogger Erick Erickson tweeted, “Y’all, I’m sorry to defy the tribe, but I’ve watched this video over and over and it looks more like @Acosta had his arm out pointing with his finger and when she tried to pull the microphone down, both his arms went down rather naturally.”

.. Among those in media and politics, the widespread consensus was an obvious one: This was not about safety and security; this was not about an assault. Acosta was punished for the way he went about his reporting.
.. “If there are professional concerns that the White House has about Jim Acosta or anyone else, they should express that professionally. They should be talking about that openly and there should be an effort to determine what, if anything, needs to change. The response is not engaging the Secret Service to pull someone’s credentials.”

“That’s just completely inappropriate and just this side of thuggery in my view,” Sesno added.

.. In public remarks on Friday morning, Trump seemed unremorseful about pulling Acosta’s credentials. The president threatened further punishment for reporters like American Urban Radio Networks’ April Ryan, calling her a “loser.”

“It could be others also” if they “don’t treat the White House and the office of the presidency with respect,” Trump said.

.. “Once the government creates the kind of forum that it has created, like the White House briefing room, it can’t selectively include or exclude people on the basis of ideology or viewpoint,” said Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project.

.. The new steps enunciated in the Sherrill decision to ensure that reporters’ First Amendment rights are not violated include

  • the requirement to give the reporter notice and
  • the right to rebut a formal written decision, which must accompany any revocation.

“We further conclude that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees,” the court’s ruling states. “Such impairment of this interest cannot be permitted to occur in the absence of adequate procedural due process.”

.. “If the Secret Service makes this kind of determination that they’re going to no longer let someone have access, or limit access from the start, there should be a really good reason for that,” Michele Kimball, a media-law professor at George Washington University, said. “And if you are denied that access, there should be some sort of procedural due process for you, [so] that you can find out what happened.
.. “What they’ve done here is not only unwise, but probably illegal,” the ACLU’s Wizner concluded.
.. He clearly relished that role as an outsider, because when he won his 11-year battle with the White House to get credentialed, he opted against it.
.. “The fun thing about this was that when I was finally going to get a press pass, I never applied,” Sherrill told the Times. “I didn’t want to be in the White House. I had been in Washington long enough to realize that was the last place to waste your time sitting around for some dumb [expletive] to give a press conference.”
When all was said and done, Sherrill knew his best work would be done far away from the place he was never allowed to visit.

Lois Lerner’s Last Laugh

If Congress did its job, nobody would be talking about another special counsel.

When House Intelligence Committee Chairman Devin Nunes subpoenaed documents and testimony from the FBI and Justice Department, he was stonewalled for months. In a last-minute bid to circumvent the committee’s demands, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein met with Speaker Paul Ryan. The two men ended up agreeing to comply with the subpoenas—but only because Mr. Ryan informed them they would be found in contempt if they did not.

This kind of stonewalling has fed the agitation on Capitol Hill for a second special counsel, who would look into everything from the FBI’s handling of the Clinton email investigation to the use of the Christopher Steele dossier to obtain warrants to listen in on members of the Trump campaign. The calls are mistaken. But the frustration is real

.. But missing here is any discussion of the powers Congress itself has, including but not limited to the subpoena and contempt powers that ultimately forced Mr. Wray and Mr. Rosenstein into compliance.

.. If it only has the backbone, Congress can get what it wants out of the federal bureaucracy. Several executive-branch officials—including Justice’s Bruce Ohr and FBI lovers Peter Strzok and Lisa Page —will soon testify before the House Intelligence Committee. Possibly some or all of them will invoke their Fifth Amendment right against self-incrimination.

If Congress insists on its prerogatives, however, that wouldn’t be the end of the story. Witnesses who plead the Fifth can still be compelled to testify. The price is that the compelled testimony, and evidence derived from that testimony, couldn’t be used against the witness in a prosecution.

A special counsel might not like this, given his emphasis on indictments and prosecutions. But Congress should, because its end goal is political accountability. Which would be up to the American people to impose after learning exactly what abuses have transpired.