by Jim Acosta
The next morning came, and the notifications were flashing on my iPhone: “CNN, Acosta Sue White House over Press Pass” and so on. The Washington Post, the New York Times, CNN, NBC, Politico, Axios, and others were all reporting the news, which was also spreading to foreign outlets around the world. On social media, critics were quick to pounce, accusing me once again of making myself the story, as though I had a choice in the matter. In this case, I could either become the story or lose my job.
CNN’s executives and attorneys recommended that I stay off social media during the court proceedings. This was wise counsel. We didn’t need a tweet to send the wrong message to the judge hearing our case, and we certainly didn’t want to inadvertently give the White House any ammunition.
The Trump administration appeared ready to do battle. Sanders announced that the White House would “vigorously defend” itself in court. But something stood out in the press secretary’s most recent statement; she had rather conspicuously changed the White House rationale for yanking my hard pass:
We have been advised that CNN has filed a complaint challenging the suspension of Jim Acosta’s hard pass. This is just more grandstanding from CNN, and we will vigorously defend against this lawsuit. CNN, who has nearly 50 additional hard pass holders, and Mr. Acosta is no more or less special than any other media outlet or reporter with respect to the First Amendment. After Mr. Acosta asked the President two questions—each of which the President answered—he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions. This was not the first time this reporter has inappropriately refused to yield to other reporters. The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional. The First Amendment is not served when a single reporter, of more than 150 present, attempts to monopolize the floor. If there is no check on this type of behavior it impedes the ability of the President, the White House staff, and members of the media to conduct business.
Sanders was obviously backpedaling from her initial statement, which had (ridiculously) accused me of placing my hands on an intern. This time the language was toned way, way down: “he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions. This was not the first time this reporter has inappropriately refused to yield to other reporters.”
“Physically refused to surrender” is a hell of a reversal, I thought. So did our lawyers. I had “refused to yield to other reporters,” Sanders’s statement added. Excuse me, but have you watched a White House press briefing? I am certainly not the first reporter to ask a follow-up question. Give me a break. This was all but an acknowledgment from the White House—and sometimes I have to remind myself this was the White House—that they had botched that original “karate chop” statement.
Other reports agreed with this assessment. “The White House Is Changing Its Tune on Why It Yanked Jim Acosta’s Press Pass” was the headline in the Washington Post. It all added up to a good development for our case.
Positive developments aside, I was getting nervous. Our day in court was coming, and there was a lot riding on the case. Yes, it was a good and necessary thing that we were challenging the White House in court, but I’d be lying if I told you I wasn’t worried that the whole thing could backfire, because it could. One potential obstacle was standing in our way, as a Trump-appointed judge, Timothy J. Kelly, would be hearing the case. This was an up-close-and-personal reminder of a president’s impact on the judiciary system. Trump and Senate Majority Leader Mitch McConnell had made it a priority to pack the courts with conservative jurists. And with a GOP Senate, they were more wildly successful at this than a lot of people in Washington had ever dreamed.
My fear, at the time, was that Judge Kelly would quickly rule against CNN, which would have meant a protracted legal battle, perhaps all the way to the U.S. Supreme Court, a process that could take months or years. Under such a scenario, the debate over who did what during the news conference would have raged on. And more important, I would have faced a long period without my press pass. My career as a White House correspondent would have been effectively ended by Trump. The man who had dubbed me “fake news” and “the enemy of the people” would have won.
Looking back, I wish I had never entertained the thought that Judge Kelly could rule against us simply because he had been appointed by Trump. Our legal team had cautioned that we should have more confidence in the independence of the judiciary. But alas, this was the Trump era. Faith in our institutions had eroded, even for me. Despite thinking of myself as a true believer in our system of government, I was feeling pretty depressed about our prospects and succumbing to a fair amount of cynicism. The Trump era had gotten to me. Everybody else was looking at things through a partisan lens. That’s certainly how Trump views the world, questioning the motivations behind the actions of people in every corner of government, from career civil servants to Senate-confirmed judges. For two years I’d been watching this process play out, but I’d never fallen victim to it myself until now.
One of our lead attorneys, the legendary Ted Olson of Bush v. Gore fame, attempted to cut through the tension. As we shook hands in the lobby of the offices of Gibson, Dunn and Crutcher, Olson smiled and made light of the accusations of “grandstanding” directed at me by the White House.
“Grandstanding,” Olson growled with a grin. “I can’t believe there is grandstanding going on at the White House.”
I laughed. We all did. Olson, with one hilarious line, had put his finger on the absurdity of the attacks coming from the White House and, I suppose, from some of my other critics. Like the line from Casablanca in which the Vichy prefect of police declares himself “shocked” to find there is gambling going on at Rick’s café even as he pockets his winnings, Olson was rightly mocking the notion that “grandstanding” at the White House would ever be a punishable offense.
Still, Olson could be just as serious-minded as he was hilarious. In an earlier interview with CNN’s Brooke Baldwin, he explained the stakes in our case and told her, “The White House cannot get away with this.”
* * *
THE HEARING ITSELF WAS BOTH FASCINATING AND FRIGHTENING AT the same time. Judge Kelly displayed an impressive poker face through it all. He respectfully pressed both sides pretty strenuously about their cases. I never testified. Instead, as the courtroom sketch artist captured, I sat stone-faced throughout the arguments. Make no mistake, though. I was nervous.
The lead Department of Justice attorney arguing on behalf of the Trump administration, James Burnham, caught our attention by making a broad and sweeping case that the president could bar anybody from the grounds of the White House that he saw fit.
“There’s no First Amendment right” for reporters to have access to the White House complex, Burnham argued. “I don’t think anyone would dispute, if [the president] wants to exclude all reporters from the White House grounds, he clearly has the authority to do that.” He went on to say that I could cover the White House and Trump simply by watching TV.
I couldn’t believe my ears.
Burnham went on to assert that the president could even remove news outlets he didn’t like, essentially arguing that Trump or any future occupant of the Oval Office could pick and choose who covered the executive branch of the government. This was a mind-blowing and dangerous claim of presidential authority, I thought. Were Judge Kelly to rule in Trump’s favor in our case, it stood to reason, the First Amendment could be hit with a damaging blow.
Judge Kelly appeared skeptical of Burnham’s overreach, asking the government’s lawyer whether the White House could say to a reporter, “We don’t like your reporting, so we’re pulling your hard pass.”
Burnham’s response was jaw dropping. “As a matter of law . . . yes,” he replied.
Judge Kelly had some probing questions to ask as well. Interestingly, he wanted to know who had been
behind the decision to remove my pass. “Do you have any information to suggest that it was anyone other than Ms. Sanders that made the decision?” he inquired.
Burnham didn’t have a good answer. “No, not that I’m offering today. I’m not denying it, but I don’t know anything beyond what’s been filed,” he answered.
Kelly, who appeared to be paying attention to the news coverage, had taken note of the shifting explanation from Sanders as to why my press pass had been revoked. What had happened to the allegation from the White House, accompanied by the altered video, that purported to show that I had placed my hands on the intern attempting to take back the microphone? he wondered.
“Why don’t you set me straight,” Kelly said. “Let me know what was the reason and address this issue of whether the government’s reason has changed over time.”
“We’re not relying on that here, and I don’t think the White House is relying on that here,” Burnham later said of the doctored video.
Let me repeat that. The government’s own lawyer said they weren’t going to rely on the video.
Still, Kelly gave me some reason to worry. He pressed our lead attorney in court, the great First Amendment lawyer Ted Boutrous, on my conduct at the news conference.
“We’ve all seen the clip,” Kelly said, noting that I had “continued speaking after [my] time expired” and “wouldn’t give up [the] microphone.”
Ouch, I thought.
Unflappable, Boutrous calmly but pointedly took issue with the government’s claims about my behavior, noting the obvious flaw in the White House argument that it could retaliate against journalists it didn’t like.
“What are the standards?” Boutrous wondered. “Rudeness is not a standard. If it were, no one could have gone to the press conference.” Besides, he added, Trump was pretty rude himself.
“[The president] is the most aggressive, dare I say rudest, person in the room,” Boutrous said. “He encourages that kind of rough-and-tumble discussion. . . . Knowing Trump, he’ll probably call on Mr. Acosta the day he gets his press pass,” he continued.
Boutrous did not know how right he was, but some of this back-and-forth bothered me, I confess. This should not be a debate about rudeness, I thought. I believed I had been standing my ground while under attack by the president. How many times do we let the bully beat us up on the playground? Still, if yielding this point to the judge served the greater good, so be it.
Then Boutrous got to the larger point: that the president was essentially trying to select the reporters who covered the White House. That’s something news organizations get to decide, not the president. “The president doesn’t have the right to choose who CNN sends to the White House,” Boutrous said.
Amen, Ted!
He went on to argue that part of the reasoning for the White House decision was its dissatisfaction with what it perceived to be CNN’s “liberal bias.” Just before our hearing, the Trump campaign released a fund-raising email to its supporters that seized on the CNN case against Trump and the White House. The email attacked CNN for having a “liberal bias.” Boutrous pointed to the email as evidence that the decision against me had been driven in part by discrimination that was “content based.”
I was looking closely to see if I could make out the Justice Department attorneys’ reaction to Ted’s use of the fund-raising email. Sitting at their table, they appeared to bristle at it as damaging to their case.
“Told ya,” I saw Burnham mouth to one of the other government attorneys at their table, as if to acknowledge that yes, the email was not helpful to the administration’s case.
Boutrous then lambasted the White House over the false claim that I had placed my hands on the intern, along with the shameful use of the doctored “karate chop” video.
“It’s absolutely false,” Boutrous said. “They’ve abandoned that,” he added about the assault accusation.
As for the more dangerous argument from the administration, that officials could conceivably bar reporters from the White House without any effect on what we did as journalists, Boutrous took a hammer to that claim as well, accusing the Justice Department of disregarding the news-gathering process for reporters on the beat. Reporters meet with sources on White House grounds. Journalists attend briefings held by administration officials. All that would be out the door if we were forced to merely watch the Trump bunch on TV.
“That’s not how reporters break stories. It’s simply a fundamental misconception of journalism,” Boutrous said.
But it was Burnham who was able to have the last word at the hearing. He argued that CNN had more than fifty employees credentialed to cover the White House. The network’s rights were not threatened if I got the boot, he added.
“The president never has to speak to Mr. Acosta again,” Burnham said. “The president never has to give an interview to Mr. Acosta. And the president never has to call on Mr. Acosta at a press conference.”
If Trump decided to ice me out from here on in, Burnham posited, what difference would it make if I had a hard pass to enter the White House grounds?
“This seems to me like an odd First Amendment injury that we’re talking about,” Burnham said.
I thought to myself, Has Mr. Burnham met Trump? Of course he’ll call on me again.
But there was a big problem with the government’s case. It had failed to address the Fifth Amendment rights, outlined in Sherrill v. Knight, which were critical to my complaint against the White House. In short, I hadn’t been given due process. Burnham didn’t really deal with that question.
Yet Judge Kelly, in a preview of his decision, told the government’s lawyers that he was bound by the Sherrill case. This was of some comfort to me as he wrapped up the hearing, which lasted nearly two excruciating hours. The judge said he would have a decision for us on our request for a temporary restraining order, essentially a two-week hold on the White House revocation of my hard pass, the following day.
I remember turning to our CNN public relations supervisor from the DC bureau, Lauren Pratapas, who was sitting next to me in the courtroom. After the hearing was finished, we both breathed a sigh of relief. It was exhausting. It was stressful. Some of it sounded good. Some of it sounded not so good.
Still, there was a big factor working in our favor, as we had received a heartwarming outpouring of support from our colleagues in the press. Thirteen news outlets, including Fox News (!), NBC, and Politico had all joined in an amicus brief in support of our lawsuit against the administration. Other outlets later jumped on board. It was, for all intents and purposes, a united front.
“It is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons. Our news organizations support the fundamental constitutional right to question this President, or any President,” the brief from the news organizations stated.
Judge Kelly could not just ignore that kind of solidarity coming from the entire Washington press corps. Sure, it might not tip the scales in our favor, but it was a critical show of support. Even Fox was on our side, we all kept saying. After all those prime-time segments on Fox News ripping me and my colleagues to shreds, this bastion of conservative media was standing with us.
Following the hearing, we huddled in a small holding room outside the courtroom to discuss what had happened. The lawyers and I all agreed that I would continue to remain silent while the judge was considering the case.
Olson, who had sat at the CNN team’s table during the hearing, adding the weight of his presence to our legal arguments, explained why he thought Kelly would rule in our favor.
Judge Kelly, Olson reasoned, would seize on the Sherrill ruling, he thought, as a quick and clean way out of what could become a complicated First Amendment case. Both CNN and the White House could battle it out over whether my First Amendment rights had been violated, Olson said. But when it came to the due process question, the White House didn’t have much of a leg to stan
d on. I hadn’t been given any due process. Judge Kelly, Olson thought, would hand us a victory based on Sherrill v. Knight.
The following day, there was more drama. Judge Kelly decided to postpone his decision for another twenty-four hours. The lawyers advised me not to read too much into that. The weather, as I recall, was pretty awful that day. I was holding out hope that another factor, albeit late in coming, was also weighing on the judge’s mind. The White House Correspondents’ Association, of which I am a member, filed an amicus brief on that Thursday. Odd timing, we thought. We could have used that show of support prior to the hearing. And to be honest, I was disappointed the WHCA had not been on our side as we walked into the courtroom. But it was better late than never.
The president of the WHCA, Olivier Knox, told me part of the reason for the delay was the very nature of the volunteer nine-member board.
“It’s like herding cats,” Knox said.
Another factor was that the organization was considering being a part of a larger amicus brief, filed along with other press freedom groups, then reconsidered.
“I thought it was good to stand apart from the crowd,” Knox said.
My WHCA sources told me Knox and other members of the group argued on my behalf with Sanders behind closed doors. Sanders, I’m told, was warned that her office’s decision to revoke my press pass “would be a sizable self-inflicted wound.”
“The entire press corps would be united,” Sanders was told by the WHCA.
Sanders was unmoved, I’m told. “They were really running hot for the first couple of days” after the press conference.
As for Shine, he could hardly be counted on as an advocate for the White House press corps. During meetings with the WHCA, Sanders was sometimes open to the concerns expressed by the board’s members about various logistical issues and coverage questions. Shine would only complain about what was being reported by the mainstream media, barely containing the fact that he had come to the White House from Fox News.