WASHINGTON — A federal judge ruled that the Trump administration must at least temporarily reinstate CNN correspondent Jim Acosta’s hard pass, delivering a victory to the network and other news organizations.
The judge, Trump appointee Timothy J. Kelly, granted CNN’s request for a temporary restraining order to restore Acosta’s access.
“I will order defendants immediately restore Mr. Acosta’s hard pass,” Kelly said from the bench at the U.S. District Court in Washington.
Kelly said that CNN was likely to succeed on its claim that Acosta was not granted due process when his passed was pulled. He cautioned that the ruling was limited and he was not yet making a determination on broader First Amendment concerns, such as on CNN’s claim that the decision to revoke Acosta’s pass was rooted in Trump’s dislike of his coverage or animus toward CNN.
In the courtroom, Acosta and San Feist, CNN’s Washington bureau chief, did not display any emotion as Kelly read through his ruling, but after he was finished, they shook hands with the network’s legal team, which is led by Ted Boutrous.
Outside the courtroom, Acosta spoke to reporters and thanked other journalists for their support in the case. “Now let’s go back to work,” he said.
Boutrous said that Acosta would be able to return to work at the White House on Friday.
Following a contentious, post-midterm press conference on Nov. 7, Acosta’s hard pass was pulled. The White House initially claimed that it was because he put his hands on a staffer as she tried to grab a microphone from him. Acosta denied that, and video of the incident shows only that his hand inadvertently touched her arm as she tried to get the mic.
In a filing on Wednesday, the Trump administration said they had a compelling reason to pull his pass — that he had disrupted the press event after refusing to yield the floor to another reporter.
But Kelly said that a 1977 D.C. Circuit opinion, Sherrill vs. Knight, involving a reporter for The Nation who was denied a press pass by the Secret Service, requires that the White House give proper notice of a revocation and an opportunity to respond. He said that the administration’s claim, that Trump himself had given him warning when he called out Acosta for “rude” behavior, was insufficient. He also said that Press Secretary Sarah Huckabee Sanders’ statements about the matter were “belated” and “hardly sufficient to provide adequate due process.”
Kelly said that another example of the lack of due process was also evident because the decision to pull Acosta’s pass was “so shrouded in mystery the government could not even say who made the decision” to do so.
The government could return to the court after showing that it did provide due process for the revocation, Kelly said. Another hearing is scheduled for next week.
CNN argued that Acosta’s pass was pulled because of Trump’s animosity toward him and the network’s coverage, an arbitrary decision in violation of the First and Fifth amendments.
The Trump administration, represented by James Burnham and other attorneys from the Justice Department, argued that it was within the president’s discretion on who to grant access to the White House.
Kelly said that although there may not be a First Amendment right to public access to the White House, the decision in Sherrill vs. Knight showed that that right to due process is triggered for the media because portions of the complex are opened to press facilities.
“I have no choice but to apply that principle here,” Kelly said.
Kelly also criticized a video that Sanders tweeted out the night that Acosta’s credentials were revoked. At the time, the White House claimed that Acosta placed his hands on an intern as she tried to get a microphone from him. Acosta called it a “lie.” But the video appeared to be sped up and slowed down in parts, to highlight a moment when his hand touched her arm.
Sanders no longer is making that claim, nor is the government. Kelly said that the claim was “likely untrue.”
Neither side was claiming that any security concerns were at issue in the case.
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