Outside the Beltway

CNN, White House Settle Dispute Over Press Pass, But Future Conflict Is Likely

The White House and CNN have settled the dispute over Jim Acosta's press pass, but future conflict between this Administration and the press corps seems inevitable.

Doug Mataconis · Tuesday, November 20, 2018 · 4 comments

Just hours after once again threatening to revoke the press pass of CNN White House Correspondent Jim Acosta, the White House reached a settlement with CNN that includes the full reinstatement of Acosta’s access to the White House, but in doing so it appears to have renewed the probability of a confrontation with Acosta or other members of the White House press corps:

Jim Acosta has his press pass back.

The Trump administration stood down on Monday from its nearly two-week-long dispute with CNN over the White House credentials of Mr. Acosta, informing the correspondent that his badge was formally restored. CNN in turn dropped its lawsuit on the matter, which had ballooned into a test of press freedoms in the Trump era.

But while it yielded to Mr. Acosta — whose testy questions had touched off Mr. Trump’s ire — the administration used the occasion to lay down a set of formal rules governing reporters’ behavior at future White House news conferences, a highly unusual step.

Among the guidelines was a restriction of one question per reporter, with follow-ups allowed at the discretion of the president or the White House official at the lectern. “Failure to abide,” the administration warned, “may result in suspension or revocation of the journalist’s hard pass.”

The White House sought to blame Mr. Acosta for behaving disrespectfully, although Mr. Trump often lobs insults at journalists and encourages a free-for-all format when taking questions from reporters.

Codifying the behavior of journalists struck some as an ominous encroachment into freedom of the press, and the White House Correspondents’ Association said on Monday that it had not been consulted about the new guidelines.

The American Civil Liberties Union, in a statement, said: “These rules give the White House far too much discretion to avoid real scrutiny. The White House belongs to the public, not the president, and the job of the press is to ask hard questions, not to be polite company.”

Still, the guidelines are not far removed from the manner in which White House news conferences typically proceed. Mr. Trump made clear last week that he would introduce “regulations” after a federal judge criticized the White House for stripping Mr. Acosta’s credentials without due process or a coherent rationale.

“We would have greatly preferred to continue hosting White House press conferences in reliance on a set of understood professional norms, and we believe the overwhelming majority of journalists covering the White House share that preference,” Sarah Huckabee Sanders, the press secretary, said in a statement.

Press relations were not always rosy in pre-Trump days. President Barack Obama’s aides preselected the news outlets that were allowed to ask questions at his news conferences. Mr. Obama often chastised reporters, including Mr. Acosta on one occasion, for questions he deemed overly aggressive or grandstanding.

But Mr. Trump, a devoted news consumer who relishes his coverage, plays up his conflicts with reporters in part to excite his supporters. He has held far fewer formal news conferences than his predecessors, and the daily White House briefing has virtually disappeared on his watch.

Revoking Mr. Acosta’s White House badge was the most severe step yet, and it soon became apparent that the move would not pass legal muster: After suing last week, Mr. Acosta was granted the temporary return of his credentials by a federal judge.

More from The Washington Post:

CNN dropped its lawsuit against the White House on Monday after officials told the network that they would restore reporter Jim Acosta’s press credentials as long as he abides by a series of new rules at presidential news conferences, including asking just one question at a time.

“Today the White House fully restored Jim Acosta’s press pass,” CNN said in a statement. “As a result, our lawsuit is no longer necessary. We look forward to continuing to cover the White House.”

The White House’s move to restore Acosta’s pass, contained in a letter to the news network, appeared to be a concession to CNN in its lawsuit against the administration. White House officials had suspended Acosta’s White House press pass following a contentious news conference on Nov. 7.

It was apparently an about-face from the position that press secretary Sarah Sanders and deputy chief of staff Bill Shine staked out just three days ago when they told Acosta and CNN that they will suspend his press pass again once a temporary restraining order against such an action expires. The 14-day order was issued Friday, and unless the judge extends it, it would expire at the end of the month.

Sanders said then that the White House would only “temporarily reinstate” Acosta’s credentials in response to a preliminary court decision in his favor. In a letter sent late Friday that was made public on Monday, Sanders and Shine acknowledged that there are no formal rules for how journalists are supposed to conduct themselves at presidential news conferences, but that Acosta had violated “basic, widely understood practices” by asking multiple questions and refusing to yield a microphone during the president’s news conference.

As a result, the officials said they would once again take away Acosta’s ability to enter the White House grounds after the restraining order lapsed.

But on Monday, Sanders and Shine said they had made a “final determination” that Acosta’s pass is restored. “Should you refuse to follow [new rules] in the future, we will take action” to remove the pass.

Among the rules: Reporters must ask one question of the president at news conferences but can follow up with another if the president chooses. A reporter must then “yield the floor,” including giving up a microphone. Failure to abide by these rules, the White House letter said, will result in revocation of a journalist’s White House pass.

The letter prompted CNN to end its litigation against the White House.

The administration’s letter to CNN came after its attorney, Theodore Boutrous, objected to the White House’s threat to remove Acosta’s pass after a restraining order expires. He wrote that such an action amounted to “retroactive due process.”

In a separate letter to Shine and Sanders that was filed with the court, Boutrous said that the White House was attempting to impose “vague, unarticulated standards” retroactively in violation of the court’s finding on Friday that Acosta wasn’t given due process by the White House when it revoked his pass.

Taking into account the fact that the law as it applies to this case is clear in that the White House revoked Acosta pass without identifying with any clarity at all the reasons it was doing so, and that the revocation occurred without any due process at all, the fact that the White House settled this case rather than try to litigate a claim that they would have seemed destined to lose is not surprising. In fact, this is precisely the resolution I suspected when Judge Kelly handed down his ruling last week and the White House was left with the decision of either taking a hard-line position against Acosta or conceding that it had failed to provide the due process required by applicable law. Indeed, had the Administration maintained the hard-line position that it appeared to be taking yesterday afternoon it is probable that it would have had a negative impact on the Judge’s view of the positions they were taking in the case since it certainly seemed as if they were essentially saying they didn’t care what the Judge had ruled and were not inclined to give Acosta or other reporters even the semblance of due process.

The result of all this, of course, is that Jim Acosta has his press pass back, for now, but that is clearly just the beginning of the process and the new “regulations” that the White House has established seem likely to have the potential to set up yet another confrontation, whether its centered around Jim Acosta or some other White House reporter. The biggest restriction, obviously, is the rule that reporters will only be permitted to ask follow-up questions at the discretion of the Press Secretary at a Press Briefing or the President at a press conference. As anyone who watches these events even sparingly knows, though, follow-up or multi-part questions have been a standard part of the process for decades now and it’s unclear just how willing the press corps is going to be to abide by such a rule. Indeed, in response to the announcement of the new policies, the White House Correspondents Association issued a statement critical of the new rules:

The president of the White House Correspondents’ Association (WHCA) said Monday that the group ”fully expect[s]” White House reporters to continue asking follow-up questions at presidential news conferences.

Earlier Monday, the White House announced new rules for reporters at news conferences that include limiting the ability of reporters to ask follow-up questions.

“The White House Correspondents’ Association had no role in crafting any procedures for future press conferences. For as long as there have been White House press conferences, White House reporters have asked follow-up questions,” WCHA President Olivier Knox wrote in a statement.

“We fully expect this tradition will continue. We will continue to make the case that a free and independent news media plays a vital role in the health of our republic,” Knox continued.

The White House on Monday said it was restoring the press pass of CNN reporter Jim Acosta after revoking it last week. But the White House also announced that it was implementing the new rules for news conferences and said that reporters who don’t follow the rules could have their credentials pulled.

The new rules limit journalists to asking one question and allows them to ask follow-up questions “at the discretion of the president or other White House officials taking questions.”

Here’s the full statement from the WHCA:

#WHCA statement on restoration of press pass pic.twitter.com/zEnhev4Llj

— WHCA (@whca) November 19, 2018

It’s also worth noting that the White House statement regarding the settlement, as reported, does not appear to be very clear on what the process would be for deciding whether or not a reporter’s pass should be revoked if it is determined that these new rules were violated, who would be responsible for making that decision, or what process the reporter or their employer would have for responding to those charges. Unless the new procedures provide at least those elements of due process, it’s hard to see how these new rules meet the requirements of the law that applies in this case as determined by a 1977 ruling of the Court of Appeals for the D.C Circuit. What all this means is that it seems probable that there will be further confrontation between the White House and the press corps, and that this matter will end up back before a court again in the future.