By Brian Stelter, CNN Business
CNN is filing a lawsuit against President Trump and several of his aides, seeking the immediate restoration of chief White House correspondent Jim Acosta’s access to the White House.
The lawsuit is a response to the White House’s suspension of Acosta’s press pass, known as a Secret Service “hard pass,” last week. The suit alleges that Acosta and CNN’s First and Fifth Amendment rights are being violated by the ban.
The suit is being filed in U.S. District Court in Washington, D.C. on Tuesday morning, a CNN spokeswoman confirmed.
Both CNN and Acosta are plaintiffs in the lawsuit. There are six defendants: Trump, chief of staff John Kelly, press secretary Sarah Sanders, deputy chief of staff for communications Bill Shine, Secret Service director Joseph Clancy, and the Secret Service officer who took Acosta’s hard pass away last Wednesday. The officer is identified as John Doe in the suit, pending his identification.
The six defendants are all named because of their roles in enforcing and announcing Acosta’s suspension.
Last Wednesday, shortly after Acosta was denied entry to the White House grounds, Sanders defended the unprecedented step by claiming that he had behaved inappropriately at a presidential news conference. CNN and numerous journalism advocacy groups rejected that assertion and said his pass should be reinstated.
On Friday, CNN sent a letter to the White House formally requesting the immediate reinstatement of Acosta’s pass and warning of a possible lawsuit, the network confirmed.
In a statement on Tuesday morning, CNN said it is seeking a preliminary injunction as soon as possible so that Acosta can return to the White House right away, and a ruling from the court preventing the White House from revoking Acosta’s pass in the future.
“CNN filed a lawsuit against the Trump Administration this morning in DC District Court,” the statement read. “It demands the return of the White House credentials of CNN’s Chief White House correspondent, Jim Acosta. The wrongful revocation of these credentials violates CNN and Acosta’s First Amendment rights of freedom of the press, and their Fifth Amendment rights to due process. We have asked this court for an immediate restraining order requiring the pass be returned to Jim, and will seek permanent relief as part of this process.”
CNN also asserted that other news organizations could have been targeted by the Trump administration this way, and could be in the future.
“While the suit is specific to CNN and Acosta, this could have happened to anyone,” the network said. “If left unchallenged, the actions of the White House would create a dangerous chilling effect for any journalist who covers our elected officials.”
During his presidential campaign, Trump told CNN that, if elected, he would not kick reporters out of the White House. But since moving into the White House, he has mused privately about taking away credentials, CNN reported earlier this year. He brought it up publicly on Twitter in May, tweeting “take away credentials?” as a question.
And he said it again on Friday, two days after blacklisting Acosta. “It could be others also,” he said, suggesting he may strip press passes from other reporters. Unprompted, he then named and insulted April Ryan, a CNN analyst and veteran radio correspondent.
Trump’s threats fly in the face of decades of tradition and precedent. Republican and Democratic administrations alike have had a permissive approach toward press passes, erring on the side of greater access, even for obscure, partisan or fringe outlets.
That is one of the reasons why First Amendment attorneys say CNN and Acosta have a strong case.
As the prospect of a lawsuit loomed on Sunday, attorney Floyd Abrams, one of the country’s most respected First Amendment lawyers, said the relevant precedent is a 1977 ruling in favor of Robert Sherrill, a muckraking journalist who was denied access to the White House in 1966.
Eleven years later, a D.C. Court of Appeals judge ruled that the Secret Service had to establish “narrow and specific” standards for judging applicants. In practice, the key question is whether the applicant would pose a threat to the president.
The code of federal regulations states that “in granting or denying a request for a security clearance made in response to an application for a White House press pass, officials of the Secret Service will be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or the family of the President so serious as to justify his or her exclusion from White House press privileges.”
There are other guidelines as well. Abrams said the case law specifies that before a press pass is denied, “you have to have notice, you have to have a chance to respond, and you have to have a written opinion by the White House as to what it’s doing and why, so the courts can examine it.”
“We’ve had none of those things here,” Abrams said.
That’s why the lawsuit is alleging a violation of the Fifth Amendment right to due process.
Acosta found out about his suspension when he walked up to the northwest gate of the White House, as usual, for a Wednesday night live shot. He was abruptly told to turn in his “hard pass,” which speeds up entry and exit from the grounds.
“I was just told to do it,” the Secret Service officer said.
Other CNN reporters and producers continue to work from the White House grounds, but not Acosta.
“Relevant precedent says that a journalist has a First Amendment right of access to places closed to the public but open generally to the press. That includes press rooms and news conferences,” Jonathan Peters, a media law professor at the University of Georgia, told CNN last week. “In those places, if access is generally inclusive of the press, then access can’t be denied arbitrarily or absent compelling reasons. And the reasons that the White House gave were wholly unconvincing and uncompelling.”
The White House accused Acosta of placing his hands on an intern who was trying to take a microphone away from him during a press conference. Sanders shared a distorted video clip of the press conference as evidence. The White House’s rationale has been widely mocked and dismissed by journalists across the political spectrum as an excuse to blacklist an aggressive reporter. And Trump himself has cast doubt on the rationale: He said on Friday that Acosta was “not nice to that young woman,” but then he said, “I don’t hold him for that because it wasn’t overly, you know, horrible.”
Acosta has continued to do part of his job, contacting sources and filing stories, but he has been unable to attend White House events or ask questions in person — a basic part of any White House correspondent’s role.
Acosta is on a previously scheduled vacation this week. He declined to comment on the lawsuit.
On CNN’s side, CNN Worldwide chief counsel David Vigilante is joined by two prominent attorneys, Ted Boutrous and Theodore Olson. Both men are partners at Gibson, Dunn & Crutcher.
Last week, before he was retained by CNN, Boutrous tweeted that the action against Acosta “clearly violates the First Amendment.” He cited the Sherrill case.
“This sort of angry, irrational, false, arbitrary, capricious content-based discrimination regarding a White House press credential against a journalist quite clearly violates the First Amendment,” he wrote.
David McCraw, the top newsroom lawyer at The New York Times, said instances of news organizations suing a president are extremely rare.
Past examples are The New York Times v. U.S., the famous Supreme Court case involving the Pentagon Papers in 1971; and CNN’s 1981 case against the White House and the broadcast networks, when CNN sued to be included in the White House press pool.
The backdrop to this new suit, of course, is Trump’s antipathy for CNN and other news outlets. He regularly derides reporters from CNN and the network as a whole.
Abrams posited on “Reliable Sources” on Sunday that CNN might be reluctant to sue because the president already likes to portray the network as his enemy. Now there will be a legal case titled CNN Inc. versus President Trump.
But, Abrams said, “this is going to happen again,” meaning other reporters may be banned too.
“Whether it’s CNN suing or the next company suing, someone’s going to have to bring a lawsuit,” he said, “and whoever does is going to win unless there’s some sort of reason.”