← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
A Hard Line on Acosta’s Hard Pass
00:28:31
The White House settled CNN’s suit, but big questions remain.
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A
The First Amendment, it's really meant as a disruptor. It's the people and journalists acting as surrogates for the people, disrupting and interrupting government officials and holding them to account.
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Hi, and welcome back to Amicus, Slate's podcast about the courts and the Supreme Court and the law and the rule of law. I am Dolly Lithwick. I cover those sorts of things for Slate. And this week was an off week for the highest court in the land. But it was nevertheless busy, having decided just at the end of last week to hold a hearing on an evidentiary matter in that very same census case we talked about on the last episode. And the Justice Department is, by the way, pushing aggressively to stop the lower court altogether and go right to the Supreme Court with this. Last Friday also saw the filing of another stunning thing, a surprise motion in the high court itself seeking to substitute Deputy Attorney General Rod Rosenstein for Matt Whitaker as acting attorney general. That was filed by Tom Goldstein, among others. He's a friend of this show. But the weirdness extends so far past the Supreme Court itself, you can't believe it. We have a court in California that entered a temporary restraining order halting Trump's brand new asylum rules at the border. We have a battle between Senators Jeff Flake and Mitch McConnell over the confirmation of Trump judges. Jeff Flake is now saying he's going to block those judges until there is legislation protecting the Robert Mueller investigation. These and other things are just a few of the items for which we are thankful this holiday week. We will never sleep again. And the legal news continues to boggle the mind. But now to that extraordinary lawsuit filed by CNN challenging the White House's decision to bar CNN's Jim Acosta from the White House following a contentious press conference just two weeks ago. After an initial loss in a federal district court and then White House threats to bar and seemingly torture Jim Acosta indefinitely, the whole thing was summarily settled on Monday night. Jim Acosta had his press pass reinstated and the White House announced brand new for the White House press corps. If your head is spinning from the speed of all this litigation, well, you will be happy to hear that. Today to explain it to us is Acosta's attorney, Ted Boutros. He represented along with Ted Olson, CNN and acosta. Ted Boutros Jr. Is a global co chair of Gibson, Dunn and Crutcher's litigation group and previously led that firm's appellate crisis management, transnational litigation and media groups. He's argued more appeals, including before the Supreme Court. And Ted Boutros, I know you're busy. Thank you so, so much for making time to join us this week on Amicus.
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A
I'm honored to be with you.
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B
So have I basically. I know I was just belching up a lot of facts very quickly, but have I more or less got the TikTok right here, that Jim Acosta on November 7th at a press conference. It gets kind of heated. The intern tries to take the mic away. Saturday Night Live makes fun of them. The press pass suspended. Sarah Huckabee Sanders initially says this is because the White House would never tolerate a reporter placing his hands on a young woman. And then there's a different story. Can you just explain, maybe start us off at the very beginning, before we even get to the TikTok, and tell me what a hard pass is.
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A
Certainly a hard pass is a crucial entree for anyone covering the White House. It gives reporters the ability to really go in freely with security, get right into the White House press areas. There are two different areas where reporters can do their work, and it really is their workplace. So for Jim Acosta, the White House press room and the areas right off the Oval Office are where he goes to work every day. And without that hard pass, it's impossible to cover the White House. You can get in with what's called a day pass, but it's a lengthy procedure. You don't have the same freedom. You can't cover breaking news that's occurring. So the hard pass is essential for someone covering the White House, and we.
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B
Have those at the Supreme Court, too. It's just a way of saying these are the folks who are the regulars on the beat, and they're accredited in ways that folks with the day pass are not accredited. So it's just kind of an organizing principle that I gather has been around for a long time.
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A
It's been around for a long time. And, in fact, the key case that we relied on, Sheryl v. Knight, which was a D.C. circuit case from the 70s, talked about the hard passes in the process that existed then. It was very similar, identical, basically, to what exists now. And that case became very important for us in this matter.
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B
Okay. Before we get to the First Amendment, I just want to make sure that I've got the timeline perfectly straight. You went to court immediately after Acosta's press pass was revoked. You argued before the judge last week. He ruled at the end of last week that, in fact. And this is based on the due process argument. We'll get to that in a second. But he said, no, you've got to reinstate this press pass. And the White House didn't go quietly into the night last week. They doubled down for a while, correct?
- [05:48]
A
That's correct. In fact, I was flying from Washington, D.C. to Los Angeles after the court entered the temporary restraining order which required that the White House reinstate the pass immediately, which they did. Jim was back in reporting within a couple of hours after the ruling. By the time I landed, the White House had sent a letter, Sarah Sanders and Bill Shine, to Jim Acosta, saying that they had now instituted a new quote unquote process and had preliminarily determined to revoke his pass again and gave him until Sunday, this was Friday night at 9 o' clock Eastern to respond. So we just launched back into action and worked to respond over the weekend and then submitted that to the White House on Sunday and then went into court first thing in the morning to alert the judge to the latest turn of events.
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B
And then by the end of the day, everything had changed on Monday night. And the White House said, we're done. Here's your press pass. There's new rules. Do you have any sense at all of what changed, or you don't know? You just know that suddenly it was settled.
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A
I have been trying to figure that out because they under the new letter that they sent on Friday, they said they would decide by 3 o' clock Eastern Time on Monday whether this was a final determination. And based on their letter, it sounded like they had made up their mind. And based on their public statements, it sounded like they had made up their mind. We did make our submission that their effort to give due process after the fact, after they had stated, like having the judge declare that you're guilty of a crime over and over again and then say, but let's have a trial now. And so that's kind of what it seemed like. So I was very surprised and pleased that they came to their senses and restored his passing.
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B
Okay, so now there are two constitutional arguments that you made in court, and you prevailed on, I don't want to call it the boring one, but you prevailed on the one that's much less sexy. You prevailed on this due process argument. So let's talk about that first so that we can save the sexy First Amendment stuff for second. Okay, sure. And you can stipulate that it's boring or not if you want to make the Fifth Amendment and due process sparkle. Right now. Here's your moment.
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I can do it.
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Okay, you go.
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A
Because it really is a very interesting due process argument that folds into itself the First Amendment argument. So the D.C. circuit in the Sherrill vs. Nye case, which involved a White House hard pass and the failure of the White House to give it to a reporter, said that there's a First Amendment right to a White House press pass and to access to the White House because the White House has opened itself up to journalists and the public in that way, and because there was that First Amendment right, it's a liberty interest protected by the due process clause. And that liberty interest could not be taken away without due process, without notice, opportunity to be heard, a fair process, a written decision. That was one of the lead arguments we invoked. And that's the argument that the judge accepted for purposes of a temporary restraining order. So I think it's a really interesting due process issue. And one of the things that amused me was the government kept arguing that we, Jim Acosta and CNN had only cited one case. And our response was, yeah, it's one case, it's directly on point and we win under it. So the fact that it's only one really doesn't make any difference, but it really is pretty unique due process strand that relates to the White House and.
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B
Help us understand, because I think one of the things that gets tricky here is this public forum problem, right, TED Because I think there's this it's hard to understand that the White House has opened the White House, but it certainly hasn't opened it. All comers to come and stick a microphone in the president's face, right?
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A
Yeah. And that really is crucial here because the government argued that the White House is the residence of the President, the president has control over the White House. They made very broad arguments. They argued the president could do anything he wanted and ban all reporters and throw reporters out at his discretion, his or her discretion, which is just wrong. But it really comes down to, for purposes of this case, the public forum, limited public forum doctrine that you just mentioned here, and this is what the D.C. circuit said in Cheryl, that whatever rights the press and public would have to go to the White House and get into the White House and cover the news or observe what's happening once the White House opened up itself and had press rooms and allowed reporters to get hard passes and to come and cover the presidency, that creates what's basically a limited public forum. And that means that the First Amendment is triggered and the the government here at the White House needs to treat the journalists who go through that process in a fair, non discriminatory way and give them due process. So that really is the essence of the Sherrill case that we invoked successfully and important to the First Amendment and due process issues.
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B
Okay, so having made due process sparkle, now let's talk about the First Amendment, which we've talked actually on the show this summer. We talked a little bit about the right of access of the press. And one of the reasons this is such a weird case to me, Ted, is because your argument, I think, was, look, the White House is banning Acosta from a purely content based criteria. They just don't like what he's saying. They don't like cnn, they don't like him personally. This is just a decision that we can ban him because of what he says. So this feels like a really easy First Amendment case to me. Am I wrong?
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A
You're not wrong at all. I felt that we had an overwhelmingly strong viewpoint content discrimination, First Amendment argument, and then we featured that prominently. The judge didn't need to reach it because under Sheryl, it was so clear that we were right and had a likelihood of winning. But I said this during the hearing. Never in history has there been more evidence that a government official here, the President and his deputies were antagonistic, didn't like the message from a particular reporter and a particular news organization. So we, you know, it was like a field day. We cited President Trump in that very press conference on November 7, saying that Jim Acosta is the enemy of the people because of his reporting. And we had, you know, the just evidence that talked about, you know, the President talking about how CNN is fake news, it's false, it's bad reporting. You'll remember when he retweeted a video of himself and wrestling with. They superimposed CNN on the other wrestler. And President Trump was supposedly beating up cnn. It couldn't get any stronger. And so that's really the most egregious First Amendment violation where the President of the United States is punishing a reporter in a news organization because he doesn't like, like what they're reporting.
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B
And you flicked at this before, but can you just say it explicitly? Their posture in response to that was like, yes, the President can absolutely bar someone from being in the White House and asking questions because he doesn't like what they say. I mean, they didn't seed that. They weren't doing that. They said, oh, no, we're doing that and the President can do anything he wants. Right.
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A
They embraced it. They said exactly that. Of course, the President can talk to whoever he wants, bar any reporters he doesn't like, bar all reporters from the White House. They use the word that the President absolute that the president has absolute discretion regarding content discrimination, which is just wrong. And so I was there was another path for them to take, but they swung for the fences and took really a stunning position about presidential power and the First Amendment. And then we had all that evidence, you know, I guess they didn't have them for very, very many directions to go because of all the evidence from their own client and his deputies in terms of discrimination against content. But it was a stunningly broad position.
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B
So I want to just pause because that's quite chilling, what you just said. I mean, the good news is they drop it and Jim Acosta has his press pass back. The bad news is it seems to me that last week you just heard an articulation of pretty much uncabbined presidential power to decide who gets to cover the White House House based entirely on, as you say, their content and their point of view and what they say. That doesn't go away, that posture. They just decided to save it for another day. Right.
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A
They may try to articulate and advocate that position again. I think what's going to happen, though, is both because President Trump cannot stay away from reporters, he thrives and lives to engage in combat with journalists, and because journalists and news organizations are going to keep coming at them and aren't going to stop, and because the First Amendment gives the news organizations that constitutional power to fight back. I don't think that the president was going to win that battle based on this notion of absolute power to stiff arm journalists. But definitely it tees up another battle for another day. So I think this was a very important victory for the First Amendment and for journalists and for the public. But it's not the last battle. I think there are going to be many more. And I think this case shows, though, that journalists aren't going to just sit back and let the White House stomp them out.
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We know you value the journalism we do here at Slate. And now more than ever, this work needs your support. And the very best way to do that is to support it via our membership program, Slate Plus. With a Slate plus membership, you can enjoy this and all of of Slate's podcasts ad free and you'll be supporting our work. At the same time, there's a free trial to be found@slateplus.com amicus and now back to the show. And we are back now with Ted Boutros of Gibson Dunn Crutcher, who represented CNN in the lawsuit against the White House over Jim Acosta's press pass. Now, you've talked about Cheryl, a couple of times. Does that lay out a crisp articulation of what the rules going forward should look like? I mean, it's clear that whatever the basis was for Jim Acosta to be bounced, that was not. He had no process there. But do we have a sense going forward of what a process would look like that would pass muster? Or is it all going to just be they're going to create? I mean, in a second I'm going to ask you about the new rules, but is it just going to be that they kind of create freaky rules and then we litigate? They create freaky rules and we litigate, or is there some principle here that we're all tilting toward?
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A
It's clearer than you might think because Cheryl says a couple of things that guide us. One, there has to be a meaningful standard. And the reason for denying a hard pass or revoking one has to be a compelling reason. And under a First Amendment jurisprudence, this is where the First Amendment and due process principles really converge. When you're talking about speech in this context, there needs to be a compelling interest before you take action with respect to the speaker. And the remedy needs to be narrowly tailored to address the compelling interest. So this goes to the new rules that the White House put out. Just because a reporter tries to ask a follow up question or gets into a give and take with the President, that's not a compelling reason to strip them of their hard pass. So I don't think that there's any possibility the courts under Sheryl would uphold application of willy nilly crazy rules or even rules on decorum to take away someone's hard pass. And so I think Sheryl then says if you're going to do that, you need to give notice of the rationale and the reason for the likely action of taking away a hard pass. And then an opportunity to be heard by the reporter from the reporter and then a written decision from the White House that explains their rationale. And then of course, there would be ways to challenge that in court.
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B
And so if you look at the four rules that were put out, quote, governing future press conferences and it says you can only ask one question and you have to, you can maybe get a follow up at the discretion of the President. And then you have to yield the floor and that includes surrendering the microphone. And the final rule says that if you don't abide by the this, they can revoke your hard pass forever. Each and every one of those rules you're saying, I think you're saying is sufficiently blurry and questionable under the existing doctrine that none of those things necessarily means that nobody gets a follow up question.
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A
Exactly. And if you watch these press conferences that have happened, including the one on November 7, the first person who's going to break those rules is President Trump. And I said this during the hearing, he was the rudest person during that press conference. That's how he likes to be. And so he is going to be the engine of destruction of those rules. And because of the way they're constructed, they're not going to be a basis for revoking hard passes in any way that would conform to the First Amendment or the Fifth Amendment.
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B
So I guess that leads me to the question. There's two overarching questions I have. One is this whole civility conversation, because what the White House was trying to say, and it sounds like you've just made this point, you know, that this notion that civility is for you but not for me has become the hallmark of our First Amendment conversation in a million contexts. Right. You think about the First Amendment all the time harder than I do. But it does feel like this is of a piece with this larger, strange moment we're in where we cloak these conversations in decorum and civility and respect for the office, but then we don't demand that of ourselves, and then we drag the First Amendment in to try to torque it around to fit that frame. Right.
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A
It's so true. It's like a massive double standard here where, you know, the irony wasn't lost on anyone. Over the weekend when the White House was talking about the need for decorum and President Trump, Trump said two or three incredibly outrageous things that had lacked any sense of decorum. And so the First Amendment, as you know, it's really meant as a disruptor. It's the people and journalists acting as surrogates for the people, disrupting and interrupting government officials and holding them to account. And so any sort of government action that's premised on the notion that a reporter was impolite, and particularly a government action that would strip away a liberty interest or a property interest in covering the White House, really creates significant First Amendment principles on their face. And so it is in the broader scheme, though we see it happening over and over again, that the citizenry and critics of the president are supposed to be polite and nice and orderly. And we have a White House that by definition is everything but that. And so I don't think that the White House is going to be able to get away with unilateral standard that Govern the press that don't govern them.
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B
And your answer to when Sarah Huckabee Sanders says, oh, Jim Acosta isn't a real reporter and he's showboating, and this isn't really journalism and this is this other performance art thing that passes for journalism, I think the answer is Sam Donaldson, Dan Rather. There's a long history of reporters doing pretty much what he did, right?
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A
There really is. And, you know, in our history, it's one of the great things about journalism. Different reporters have different styles and different approaches to trying to get as much information as they can. And there's a long tradition in White House reporting of reporters being aggressive and colorful. In fact, Sam Donaldson submitted a declaration in support of our case. It was, it was really, really interesting to hear him say, this is nothing new. This is nothing different than what, what we did. Other reporters have different styles, and it's that collection of different voices that helps the American people get the information that they need to govern themselves. And so it really is a stylistic objection. You know, Jim Acosta is a superb reporter and he's, he's gotten a lot, he's broken a lot of news. Other reporters take a different approach and they get, they get the White House to reveal information to them. That's really what the First Amendment is meant to achieve.
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B
And does it matter? Did it matter in court that the claim that was initially advanced, using what appears to have been doctored video, that Acosta manhandled this intern and put, you know, karate chopped her, I think was the word that kept showing up in social media, and they abandoned that argument and turned it into a decorum argument? Did it matter? Do you think that the original argument was predicated in something that was demonstrably indefensible and false?
- [23:46]
A
It did matter, and it undermined the credibility of everything that the White House was saying, including in court. And I made this point to the judge that the judge asked me, why is that significant? I said, it undermines everything they've said and they change rationales three or four times. It just demonstrated that it was all a pretext for content based discrimination. It was such an outrageous smear that was false based on doctored videotape. Once you have that to work with against your opponent, it makes it much easier to demonstrate that their arguments factually and legally don't hold water.
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B
It does make your due process arguments that much sexier, I guess, when you're saying, look, everything about their process is pretextual. So I guess we'll give you points for making it interesting on that front.
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A
Thank you. I try. I do my best.
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B
I want to ask you just one last question, Ted, and that is I'm looking at a piece you wrote in Politico in October 2016 called while I'll defend anyone Trump sues for speaking freely and why I'll win. And you made a really passionate case about the ways in which then candidate Trump uses the First Amendment and threats of litigation under the First Amendment to shut down criticism. And under that, I think you make a pretty passionate kre de queue about why this is, in fact, really dangerous for democracy. So I wonder if you could just, in other words, take us out of, you know, you've been in the trenches fighting this thing, but help us understand in the frame, the larger frame. You've had two years to think about this. Why this kind of persistent claim that when other people speak about me it's fake and I sue them and they back down is really so pernicious beyond just the fact that it looks thuggish and bullying.
- [25:49]
A
It really is pernicious. And what prompted that article that you mentioned in Politico that I wrote was during the campaign, you'll remember candidate Trump threatening to sue all the women who had made accusations of misconduct against him during the campaign. And I thought, this is horrible. These are citizens who are speaking up during a presidential election. You have a candidate who's wealthy threatening to bring lawsuits to try to stop them from speaking out. And that pattern of the president of the United States seeking to intimidate citizens and others and journalists by attacking them and threatening them. And President Trump, I think they threatened to sue Michael Wolff for his book. And it really goes to the reason why the Supreme Court in Times versus Sullivan created the very high standards of defamation for public officials and public figures, because that sort of threat can intimidate people. The threat of damage awards and legal costs, it can intimidate and chill speech and shut down dialogue. And that protects the people in power. It protects government officials. It hurts our democracy. So it is not going away. We saw it during the campaign and we saw it last week with respect to CNN and Jim Acosta. That's why I just really feel it's important to have lawyers fight back and journalists fight back and citizens fight back so we can keep control of our own government.
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B
Ted Boutros is global co chair of Gibson, Dun and Kretcher's litigation group. He represented CNN and Jim Acosta in the last two weeks. And Ted, thank you very much. I know you're chasing the First Amendment all around the country this week. So I thank you very, very much for taking the time to be with us.
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A
I really enjoyed it. Thank you.
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B
And that is all there is for this episode of Amica Amicus. We are thankful now more than ever that you listened. If you'd like to get in touch, our email is amicuslate.com and you can always find us@facebook.com amicuspodcast. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is managing producer of Slate Podcasts. And we will be back with another episode of Amicus in two short weeks.