Acosta's decision could help the White House expel journalists

Ta decision of the US District Court Judge Timothy Kelly, chain of cable information v. Donald J. Trump order the White House to restore the press card of the journalist Jim Acosta was hailed as a victory not only for CNN, but for the entire press and the cause of journalism. But the end result of Kelly's decision and CNN's lawsuit may not please journalists and the news agencies that employ them.

The transcript of the November 16 hearing during which Kelly made her oral decision was released Monday in a group of court documents. Kelly said that the White House could not expel Acosta without first providing him with due process – in particular, a notice of revocation of his press pass, a chance for Acosta to respond and a written decision.

In short, the judge told the White House: You can not dismiss a journalist without going through a process. But if you follow a process – which you can design, at the White House – you can then dismiss the journalist. In the end, it could be that Kelly's decision would allow the White House to more easily eliminate journalists in the future – and make the decisions that are required.

Throughout the hearing, Kelly evoked the only real precedent in the Acosta affair, a 1977 case of the US Circuit Appellate Court called Sherrill v. Knight. In this case, the court ruled that the White House – especially the secret service – could deny access to the press to a "bona fide journalist" without due process. The court defined due process as "a procedure by which an applicant is informed of evidence upon which the Secret Service proposes to base its refusal, [and] the reporter has the opportunity to refute or explain this evidence, and the secret service issues a final written decision specifying the reasons for its refusal to issue a press pass. "

In court, Kelly told CNN lawyers and the government that he would use Sherrill as a guide in the Acosta material. In his view, the due process described in Sherrill should be applied to Trump House treatment by Acosta or any other White House reporter. "The court of Sherrill said that this process should include notice, an opportunity to rebut the government's motives and a written decision, "Kelly said.

The judge made it clear that if the White House acted in this way, if she jumped through these obstacles, she could expel a journalist without raising procedural problems.

Of course, CNN raised another problem in the suit, namely, that the White House had violated Acosta's First Amendment rights by throwing him out by saying that the White House's views were too negative. On this point, Kelly has not issued any opinion. "By solving this [restraining order] (…) I was not at all compelled to join the plaintiff's first amendment claim that the government had discriminated against the point of view or the content, "Kelly said. I want to clarify two things. I did not determine that the first amendment had been violated here; I did not determine which legal standard would apply here to the first amendment claim … and I have not determined which parts of Sherrillif so, would bind me on these issues. "

But the White House said that she had canceled Acosta's pass, not because of the content of her reports, but because of her behavior at a press conference on July 7. November. In court, Kelly described this behavior as follows: "After Mr. Acosta had asked several questions about the caravan of migrants heading for the US-Mexico border, the president said he wanted to move to a other reporter, but Mr. Acosta would not sit and continued to try to ask his question, then he would not give up the microphone even in the approach of a trainee employed by the press service of the White House who tried to recover it. "

Kelly could view the White House's action as grounded in conduct, as the White House claims, rather than on content, as CNN claims.

In any event, even though Acosta retains her pass, Kelly said the president would have the right to freeze the CNN correspondent forever. " Sherrill explicitly recognizes the right of the president to engage with whom of his choice, "Kelly said. He certainly does not need to call Mr. Acosta again. The only problem in this case was that, according to Sherrill, "The government must ensure due process to Mr. Acosta to revoke his passport."

Beyond that, Kelly noted that the White House would be on firm legal ground if it evicted all journalists from the building. "The government also argued that there was a case law stating that the public did not have the general right of the first amendment to enter the White House," said the judge. "I have nothing against that at all."

Kelly added that the problem in the Acosta case was that the White House currently allows journalists to enter. " Sherrill Says that once the White House has opened some to reporters, a kind of First Amendment freedom involving a due process right is created, "said Kelly," and I have everything simply no choice but to apply this precedent. right here."

The White House quickly took Kelly's decision to heart and began the process of treating journalists in future situations similar to those of Acosta. The president spoke about it during an interview with Fox News over the weekend.

"What [the judge] said, however, was that we must create rules and regulations for driving, etc., etc. "said Trump. We do that. We will write them right away, it does not matter. And if [Acosta] wrong behaves, we will throw it away or we will stop the press conference. "

When Fox's Chris Wallace asked him what the rules were, Trump said, "We'll have decorum rules, you know, you can not keep asking questions, did you have a lot of reporters in this room?" , many, many The reporters in this room and they were unable to ask questions because this guy gets up and starts doing what he's supposed to do for him and for CNN, and, you know, shouting questions . "

The regulatory process has not taken a long time. On Monday afternoon, the White House released a set of rules that "will govern White House press conferences in the future." The list:

"We would have greatly preferred to continue to hold press conferences at the White House on the basis of a set of well-understood professional standards, and we believe that the overwhelming majority of journalists covering the White House share this preference ", said press officer Sarah Sanders. "But given CNN's position, we now feel compelled to replace previously shared practices with explicit rules."

At the same time, the White House announced that it had "reinstated" Acosta's press card and CNN announced the abandonment of the lawsuit. CNN did a celebratory dance; network commentator Brian Stelter, called it's "a win for CNN and for the American free press".

But the situation was not so simple. After the action of CNN, the White House only took a few days to create a structure that did not exist before the trial, which helps to expel journalists from the House. -Blanche. There is no doubt that any alleged future violation will imply a formal accusation that a journalist violated the written norms, a chance for the journalist to respond, a written decision revoking the journalist's powers and an expulsion, all in accordance with the guidelines established by a federal judge.

Of course, the press will protest and may go to court if the White House complies with the new standards. But future judges might be less inclined to dictate to the president the content of what he or she can or can not do vis-à-vis the press, once he has taken care to recognize the right to due process. And if that happens, CNN will have played an important role in the new limits imposed on the press.