White House Doubles Down on Bid to Strip Acosta’s Hard Pass

The Trump administration renewed its efforts to suspend the hard pass of CNN correspondent Jim Acosta on Nov. 16 shortly after receiving a court order to restore the credentials, according to letters and emails revealed in court filings on Nov. 19.

In a Nov. 16 letter (pdf), top White House communications officials Bill Shine and Sarah Sanders inform Acosta of a preliminary decision to suspend his recently-restored hard pass and inform the correspondent that he can appeal the decision in writing.

The White House letter addressed the issues regarding Acosta’s constitutional rights to due process which U.S. District Judge Timothy Kelly cited in ordering the White House to restore the reporter’s credentials. Kelly said during a hearing on Nov. 16 that the White House’s “belated efforts were hardly sufficient to satisfy due process.”

Acosta will retain his restored hard pass while the court’s temporary order is in effect. In the meantime, having addressed the due process issues, the letter from Shine and Sanders may narrow the scope of the lawsuit to CNN’s assertion that the White House is violating Acosta’s right to free speech.

In issuing the temporary order, Kelly, a Trump appointee, did not rule on whether or not the White House violated Acosta’s First Amendment rights.

Acosta’s attorney contested the White House’s renewed effort to strip the correspondent of his hard pass, writing in a letter on Nov. 18 (pdf) that “any action to suspend his hard pass based on the President’s November 7, 2018, press conference would unquestionably violate his constitutional rights.”

“Put simply, the White House’s illegal reaction after the November 7 press conference cannot be made legal now by applying after-the-fact concocted process,” attorney Theodore Boutrous Jr. wrote.

In explaining the decision to revoke Acosta' hard pass, Shine and Sanders wrote that the correspondent violated a set of unwritten rules of decorum for the press. According to the White House, there is “widely shared understanding” that each reporter who is called upon during a press conference may ask one question and, if permitted by the question taker, ask a follow-up question, after which the reporter is expected to yield the floor to colleagues and surrender the microphone.

“On November 7, 2018, you failed to abide by these basic, widely understood practices,” Sanders and Shine wrote, detailing how Acosta refused to yield the floor and refused to physically surrender the microphone to a White House intern.

“No other reporter at the press conference made physical contact with our intern in that fashion or refused to yield the floor as you did.”

According to a Nov. 19 court filing (pdf), CNN and the White House Correspondents’ Association attempted to resolve the dispute with the White House by working cooperatively on a set of protocols for White House press conferences. Instead, the White House pressed on with efforts to strip Acosta’s hard pass, according to the filing.

President Donald Trump and Sanders both said the White House is working on a set of rules for press conferences.

Attorneys for the White House responded to the claim by noting that the Trump administration was merely taking the steps explicitly suggested by the court. The White House is expected make a final determination about Acosta’s hard pass at 3 p.m. on Nov. 19.