Trump-Appointed Judge Sides CNN

It's just the temporary restraining order, but I find the logic amazing all the same.
The judge also found that Acosta suffered “irreparable harm,” dismissing the government’s argument that CNN could simply send other reporters to cover the White House in Acosta’s place.

The suit by CNN alleges that Acosta’s First and Fifth Amendment rights were violated by suspending his hard pass. While the judge didn’t rule on the underlying case, he signaled they were likely to prevail in their claims.
Having spent a fair part of my life going into and out of secure facilities, I find it stunning that a judge would rule that someone has a Constitutional right not to be forbidden from one. Revocation of a prior clearance to enter falls, surely, under the authority of the executive branch. Article II of the Constitution says "[t]he executive power shall be vested in a President of the United States of America." If Trump were to give the order personally, I can't see how it could be outside the scope of the President's authority; but were he to delegate it, well, that's how all executive authority works. If a base commander can revoke your clearance to enter his base, whoever is delegated similar authority over journalists can do it.

Nor do I buy that it does 'irreparable harm' to a journalist to be reassigned, which is all that would result if this one permanently lost access to the President. OK, go cover the UK Prime Minister instead. CNN does both, and having been kicked out by Trump would only improve Acosta's standing in the eyes of European leaders he might be assigned to cover instead. What's the harm?

Supposedly there's some due process issue, but I can't think what it would be. Secure facilities have a right to refuse entry to anyone, or to remove anyone, prior to whatever process of review there is for that decision.

The judge isn't a partisan against Trump, being a Trump appointee. I make no such accusation; but what an amazing decision to have reached, even on the temporary order. He has to make a judgment that success in the main suit is likely, and I can't see any basis for thinking it at all likely.


raven said...

In this age of constant surveillance and forever data storage, the question regarding any Judicial decision of public interest is does someone have a lever on the Judge.

When Clinton took office, and all those FBI files disappeared, only to be found in the WH, this is why- leverage.

Christopher B said...

I understand what you're saying but I think you're getting the secure facility analogy wrong. You were in secure facilities where all access had to be justified, at least in non-public areas. The WH is not really such a facility. It's open to public tours for anybody who wants to wait. They also really didn't revoke his access fully, just the hard pass to avoid having to get a day pass. So they didn't really ban him, just made him hassle with WH security every day. As I understand it the WH staff can't ban him because of agreements with the WHCA which controls who gets access to office space and briefings in the WH. I started having a bad feeling about this yesterday when I started to understand exactly what was revoked. I think this is a case where trying a half-measure because it was easy instead of going to the mat to get Acosta removed is going to come back to bite Trump.

E Hines said...

Irreparable harm by being barred from the room? He can watch the proceedings on television--CNN's network, perhaps--and then write to his heart's content on those proceedings. The only thing he loses is the ability to ask questions.

Will "journalists" next argue that they have a constitutional right to be called on to ask questions?

The White House needs to appeal this. All the way. Especially since the judge was too timid to address both questions raised in the suit.

the WHCA which controls who gets access to office space and briefings in the WH

That's a control the White House delegated to the WHCA as a matter of White House convenience. They can take it back. They really should have moved to the different facility that was proposed at the start of Sean Spicer's tenure as Press Secretary; the WHCA's whining about the inconvenience should have been ample justification for the move. The WHCA threatened to boycott pressers if the move were made, as I recall, and the White House folded. They should not have.

Eric Hines

Grim said...

I could be wrong, but I’ve been to the White House grounds (specifically to the executive building where the NSC operates). That is certainly a secured facility, and yet if you try to walk from there to the White House you won’t get in — not in spite of being cleared into the secure campus and having badges to prove it.

Still, we will see. My initial sense may prove to be the wrong way to think about it. I’m just of the mind that this judge’s can’t be the right approach.