An initial hearing is underway in CNN and Jim Acosta’s federal lawsuit against President Trump and several top White House aides.
The hearing was gaveled to order around 3:42 p.m.
Lawyers for the network and Acosta are asking Judge Timothy J. Kelly for a temporary restraining order and a preliminary injunction that would restore his press pass right away.
They are expected to argue that time is of the essence because his rights are violated every day his pass is suspended.
Kelly may rule on the temporary restraining order request from the bench or after taking a brief recess.
He opened the hearing quizzing CNN’s attorney on the network’s First Amendment claim and asking how the President’s history of attacks on CNN should be viewed in the context of the lawsuit.
One of CNN’s attorneys, Theodore Boutrous, rattled off examples of Trump’s missives against the network, including his claim that the network is the « enemy of the people. »
Kelly said there is some evidence that Acosta’s actions led the White House to revoke his press credentials, pushing back on arguments from CNN’s lawyers that Acosta’s press pass was taken away because of his aggressive coverage of Trump.
The judge was responding to arguments from Boutrous, who said, « never will there be more evidence of facial discrimination and animus against an individual reporter. »
Kelly said « we’ve all seen the clip » of the White House press conference where Trump and Acosta argued. Kelly said that Acosta « continued speaking after his time expired » and « wouldn’t give up his microphone » — points that the Trump administration made in its briefs earlier Wednesday.
Under questioning from the judge, Boutrous cited Trump’s words to Acosta from the press conference, and said, « ‘Rudeness’ is really a code word for ‘I don’t like you being an aggressive reporter.' »
In addition to the temporary restraining order and preliminary injunction that CNN is seeking at the hearing, CNN and Acosta are also seeking what’s known as « permanent relief. » The lawsuit asks the judge to determine 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 lawsuit was filed on Tuesday morning, nearly one week after Acosta was banned.
Most of the country’s major news organizations have sided with CNN through statements and plan to file friend-of-the-court briefs.
The White House has vowed to « vigorously » defend its action.
In a legal filing by the Justice Department on Wednesday, the White House asserted that it has « broad discretion » to pick and choose which journalists are given a permanent pass to cover it.
That position is a sharp break with decades of tradition. Historically both Republican and Democratic administrations have had a permissive approach to press access, providing credentials both to big news organizations like CNN and obscure and fringe outlets.
Acosta’s suspension -— which took effect one week ago — is an unprecedented step. Journalism advocates say it could have a chilling effect on news coverage.
« If the press is not free to cover the news because its reporter is unjustly denied access, it is not free, » former White House correspondent Sam Donaldson said in a declaration supporting CNN that was filed with the court on Tuesday. « And if denying access to a reporter an organization has chosen to represent it — in effect asserting the president’s right to take that choice away from a news organization and make it himself — is permitted, then the press is not free. »
Ted Olson, a Republican heavyweight who successfully argued for George W. Bush in Bush v. Gore, is representing CNN, along with Boutros — himself another prominent attorney — and the network’s chief counsel, David Vigilante.
Olson said Tuesday that while it was Acosta whose press pass was suspended this time, « this could happen to any journalist by any politician. »
He spoke forcefully against Trump’s action. « The White House cannot get away with this, » Olson said.
CNN’s lawyers say the case hinges on Acosta and CNN’s First Amendment rights; the shifting rationales behind the ban; and the administration’s failure to follow the federal regulations that pertain to press passes, an alleged violation of Fifth Amendment rights. The lawsuit asserts that this ban is really about Trump’s dislike of Acosta.
The « reasonable inference from defendants’ conduct is that they have revoked Acosta’s credentials as a form of content- and viewpoint-based discrimination and in retaliation for plaintiffs’ exercise of protected First Amendment activity, » CNN’s lawsuit alleges.
Many media law experts, unaffiliated with CNN, believe the network has a very strong case.
Meanwhile, the Trump campaign is trying to capitalize on the lawsuit. On Wednesday it sent out an emailed survey to potential donors that asked recipients if they think the ban on Acosta was justified. The email’s subject line was, « CNN SUES! Help Trump win. »
This is a breaking story. This article will be updated.
