White House says it has ‘broad discretion’ on media access

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WASHINGTON — President Donald Trump’s administration contends it has “broad discretion” to regulate press access to the White House as it fends off a legal challenge from CNN and other outlets over the revocation of journalist Jim Acosta’s “hard pass.”

In a legal filing ahead of a Wednesday hearing on CNN’s request for a temporary restraining order to restore Acosta’s access, the government argues it “was lawful” to punish Acosta for his behavior during a contentious Trump news conference last week.

The White House’s explanations for why it seized Acosta’s “hard pass,” which grants reporters as-needed access to the 18-acre complex, have shifted over the last week.

Acosta has repeatedly clashed with Trump and press secretary Sarah Huckabee Sanders in briefings over the last two years.

CNN and Acosta are asking Judge Timothy Kelly for a temporary restraining order and a preliminary injunction that would restore his access right away.

Lawyers for CNN and Acosta are arguing that time is of the essence because his rights are violated every day his pass is suspended.

They are also seeking a declaration that Trump’s action was “unconstitutional, in violation of the First Amendment and the Due Process Clause of the Fifth Amendment.” This could protect other reporters against similar actions in the future.

The government’s filing quotes a tweet by Sanders in which she announced the suspension of Acosta’s pass and saying his “conduct is absolutely unacceptable.”

The “conduct” mentioned by Sanders in the tweet that the government lawyers cite actually refers to a false and since-dropped argument that Sanders had made in the aftermath of the news conference — that Acosta was “placing his hands on a young woman just trying to do her job as a White House intern.”

The administration has backed away from that argument in recent days, and it makes no appearance in the government’s first legal comment on the case Wednesday.

Even when the filing directly quotes Sanders’ tweets, it leaves out that part.

The government’s lawyers said in Wednesday’s filing that the back and forth between Trump and Acosta during last week’s news conference, during which Trump strongly criticized Acosta, qualifies as “due process.”

They also cite Sanders’ statement the night of that press conference as “notice of the factual bases for denial.”

“The president had similarly criticized Mr. Acosta’s conduct during that press conference, which complemented Ms. Sanders’ notice,” the government argued.

The government also claimed CNN can’t be harmed by the banning of one of its journalists, arguing that the “network has roughly 50 other employees who retain hard passes and who are more than capable of covering the White House complex on CNN’s behalf.”

“This is a very, very important case,” Ted Olson said.

Olson, a Republican heavyweight who successfully argued for George W. Bush in Bush v. Gore, is representing CNN along with another prominent outside attorney, Theodore Boutrous, and the network’s chief counsel, David Vigilante.

Olson said Tuesday that it was Acosta whose press pass was suspended this time, but “this could happen to any journalist by any politician.”

He spoke forcefully against Trump’s action.

“The White House cannot get away with this,” he said.

Other news organizations are now standing with CNN.

In a statement Wednesday, The Associated Press, Bloomberg, First Look Media, Fox News, Gannett, NBC News, The New York Times, Politico, USA Today and The Washington Post, among others, said, “Whether the news of the day concerns national security, the economy, or the environment, reporters covering the White House must remain free to ask questions. It is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons. Our news organizations support the fundamental constitutional right to question this President, or any President. We will be filing friend-of-the-court briefs to support CNN’s and Jim Acosta’s lawsuit based on these principles.”

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