(CN) – The White House said in a legal filing on Wednesday that President Donald Trump has “broad discretion” to determine journalists’ access, the administration’s first formal response to CNN’s effort to get back correspondent Jim Acosta’s press pass.
In a 28-page response to the federal complaint filed by CNN and Acosta on Tuesday, Justice Department attorney Michael Baer contends “no journalist has a First Amendment right to enter the White House,” and that “the president need not survive First Amendment scrutiny whenever he exercises his discretion to deny an individual journalist one of the many hundred of passes granting on-demand access.”
In its lawsuit, CNN argued that the administration’s decision to revoke Acosta’s press pass after he engaged in a testy exchange with the president during a press conference is unconstitutional and asked that U.S. District Judge Timothy Kelly order the White House to restore it.
According to the news network, the “wrongful revocation of these credentials” violated “CNN and Acosta’s First Amendment rights to freedom of the press, and their Fifth Amendment rights to due process.”
Baer argues in the administration’s court filing, that “the President and White House possess the same broad discretion to regulate access to the White House for journalists … that they possess to select which journalists receive interviews, or which journalists they acknowledge at press conferences.”
Since Acosta’s press pass was taken from him, several news organizations have expressed their support for CNN’s quest to get them back.
The New York Times, NBC News, The Associated Press, Bloomberg, Politico, USA Today and the Washington Post have all said they will file amicus briefs in the case, and on Wednesday morning, Fox News threw its support behind its cable competitor.
“Fox News supports CNN in its legal effort to regain its White House reporter’s press credential,” said Jay Wallace, president of Fox News, in a written statement. “While we don’t condone the growing antagonistic tone by both the President and the press at recent media avails, we do support a free press, access and open exchanges for the American people.”
Ballard Spahr attorney David Schultz – who also serves as director at Yale Law School’s Media Freedom and Information Access Clinic – told a reporter it seems unlikely the Trump administration will ultimately succeed in its bid to keep Acosta out of the White House permanently.
“While Acosta does not have a constitutional right to a White House press pass, its removal as retaliation for unfavorable coverage would infringe his First Amendment rights,” Schulz said. “The Court of Appeals for the District of Columbia addressed this very issue during the Nixon administration.”
Schulz was referring to Robert Sherrill v. H. Stuart Knight, an appellate court ruling in Washington, D.C. which found that the Secret Service could not deny a journalist White House press credentials unless a truly compelling reason was given.
Sherrill, a reporter for the Nation, had a track record of asking pointed questions to both Democratic and Republican politicians. In 1966, when he applied for a White House press pass under the administration of Lyndon Johnson administration, the request was denied.
He tried again under then President Richard Nixon and again, was denied.
The government claimed its refusal was based on their belief that Sherrill posed a security risk but ultimately, their argument failed and the reporter’s access was restored.
Baer argues CNN’s interpretation of Sherrill is wrong.
“Far from establishing all-purpose rules for regulating White House press passes— rules that apply to everything from the Secret Service’s determinations about security risks to the President’s personal exercises of discretion based on his first-hand observations—Sherrill addressed solely the Secret Service’s decision to deny a pass on security grounds to a journalist to whom the White House had otherwise decided to grant access,” he wrote.
Acosta, unlike Sherrill, had his access removed at a different point in the application process and the choice to suspend him also came from a “much higher level” decision maker than in Sherrill. It was not a department head that removed Acosta, but the president.
Acosta’s due process rights were also kept intact, Baer argues, because the reporter was given a proper explanation of the reasons behind his removal.
“Mr. Acosta remains able to practice his profession and report on the White House. And CNN’s straits are even less dire, given that the network has roughly 50 other employees who retain hard passes and who are more than capable of covering the White House complex on CNN’s behalf,” Baer wrote.
During a hearing on the matter on Wednesday, Judge Kelly pressed CNN attorney Theodore Boutrous on whether he believed the White House’s decision to revoke Acosta’s badge was, on its face, purely content discrimination or if there was any evidence to suggest it was Acosta’s behavior that triggered the suspension.
Boutrous said there was little question that the president has animus toward members of the media, noting the president’s frequent derision of the press as the “enemy of the people” and the ubiquitous “fake news.”
Boutrous also cited a Trump campaign email blast from 2016 that slammed CNN for alleged bias. This, the attorney told the judge, was further proof that the revocation was retaliatory.
“The evidence that it was content-based is overwhelming,” Boutrous said.
Kelly the asked Boutrous why, if the president was discriminating against Acosta, would he call on him during the news conference?
The attorney responded by saying the president called on Acosta precisely because he believed the engagement would be attention-getting.
“Trump is often the most aggressive and rude person in the room. [He] wants a free-for-all,” the attorney said.
Deputy Assistant Attorney General James Burnham, arguing on behalf of the government, said CNN’s claims of viewpoint discrimination are unfounded, noting that the network “has access to 50 [passes] already.”
He went on to offer a critique of Acosta, contending that “grandstanding is not a viewpoint … a single journalist’s attempts to monopolize a conference is not a viewpoint,” Burnham argued.
Kelly said he will issue a ruling in the case Thursday afternoon.