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Judge postpones decision in CNN lawsuit over Jim Acosta's press pass

Lawyers for CNN and the Trump administration are awaiting an initial ruling on the network's ...

Posted: Nov 16, 2018 9:46 AM
Updated: Nov 16, 2018 9:46 AM

Lawyers for CNN and the Trump administration are awaiting an initial ruling on the network's federal lawsuit over press access to the White House. And they're going to have to wait a little while longer.

Judge Timothy J. Kelly heard nearly two hours of oral arguments about CNN's request for a temporary restraining order and preliminary injunction on Wednesday. Then he said court would reconvene Thursday at 3 p.m.

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But on Thursday afternoon, he rescheduled the next hearing for Friday at 10 a.m.

If Kelly grants CNN's requests on Friday, CNN chief White House correspondent Jim Acosta would get his press pass back for a short period of time. If it's denied, Acosta's pass will remain suspended.

Either way, this is just round one. By filing for a temporary restraining order, CNN is seeking what's known as "emergency relief." CNN is arguing that Acosta's First Amendment rights are being violated every day he is banned from White House grounds.

CNN is also asking for "permanent relief," meaning a declaration from the judge that President Trump's revocation of Acosta's press pass was unconstitutional. This legal conclusion could protect other reporters from retaliation by the administration.

But the judge will not be ruling on that yet. Kelly is only expected to weigh in on the temporary status of Acosta's press pass.

Further hearings are likely to take place in the next few weeks, according to CNN's lawyers.

The White House took the unprecedented step of suspending Acosta's access after he had a combative exchange with Trump at last week's post-midterms press conference. CNN sought a resolution for several days before filing suit on Tuesday.

The resulting lawsuit by both CNN and Acosta alleges violations of the First and Fifth Amendments. The defendants are Trump and several of his top aides.

The case was assigned to Kelly, a Trump appointee who has been on the federal bench just more than a year now. He was very inquisitive at Wednesday's hearing, asking tough questions of both sides, drilling particularly deep into some of CNN's arguments.

Attorney Theodore Boutrous, representing CNN in court, called Trump's move to revoke Acosta's hard pass "the definition of arbitrariness and capriciousness."

"What are the standards?" Boutrous asked. "Rudeness is not a standard. If it were, no one could have gone to the press conference."

Boutrous also commented that Trump is "the most aggressive, dare I say rude, person in the room" at press conferences.

After Boutrous spoke, Justice Department lawyer James Burnham argued that the Trump White House has the legal right to kick out any reporter at any time for any reason.

Burnham, who's been tasked with defending Trump, was responding to a hypothetical from Kelly. Burnham said that it would be perfectly legal for the White House to revoke a journalist's press pass if it didn't agree with their reporting. "As a matter of law... yes," he said.

Burnham's comment in court made the stakes of CNN v. Trump crystal clear.

On Thursday, the White House Correspondents' Association asked to file an amicus brief backing up CNN's suit. In the brief, lawyers for the association -- which represents the White House press corps -- write that the administration's stance is "wrong" and "dangerous."

"Simply stated, if the President were to have the absolute discretion to strip a correspondent of a hard pass, the chilling effect would be severe and the First Amendment protections afforded journalists to gather and report news on the activities on the President would be largely eviscerated," the association says in the brief.

More than a dozen major news outlets -- most of CNN's rivals -- have also filed a friend-of-the-court brief supporting CNN's action.

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