WASHINGTON (CN) — The White House’s new press pass policy breaks more than 50 years of tradition. And when it revoked Playboy reporter Brian Karem’s pass last year, the D.C. Circuit ruled Friday, it also very likely broke the law.
“We think Karem’s due process claim is likely to succeed because, on this record, nothing put him on notice of ‘the magnitude of the sanction’ — a month-long loss of his White House access, an eon in today’s news business — that the White House ‘might impose’ for his purportedly unprofessional conduct at the non-press-conference event,” U.S. Circuit Judge David Tatel wrote for a three-judge panel.
The event that cost Karem his so-called hard pass — special press credentials that give reporters on-demand access to the White House complex — was held last July.
Following a social media summit, Karem stood with other reporters in a cordoned-off press area of the Rose Garden to hear prepared remarks from President Donald Trump.
After the president went back to the White House without answering a question Karem had shouted, the reporter got into a verbal altercation with former White House aide Sebastian Gorka.
Three weeks later, the press secretary informed Karem that he had violated “professional journalistic norms” and would lose his pass for 30 days.
Friday’s ruling notes that, prior to the Trump administration, no journalist had ever had their pass suspended in the 50-plus years that the White House has been issuing press passes.
But what had once been something of a laissez-faire approach changed in 2018, Tatel wrote, at a press conference where CNN reporter Jim Acosta refused to immediately hand off the microphone to a White House staffer after posing questions that went ignored by Trump.
Acosta won an injunction, and, rather than appeal, the White House released a letter that set rules to govern future press conferences.
As Tatel noted Friday, however, that letter did not firmly outline expectations for journalist conduct in open areas of the White House like the Rose Garden.
The Justice Department argued that a win for Karem would mean the White House press secretary would be hand tied even if a reporter “mooned” the president or shouted racial slurs at a foreign dignitary.
But Tatel wrote that the preliminary ruling, based on principles of due process, does not limit the authority of the White House to “maintain order and decorum at White House events by, for example, ordering the immediate removal of rogue, mooning journalists.”
Tatel added that the White House has a legitimate interest in maintaining a degree of control over reporters roaming the executive mansion.
“‘The Constitution,’ however, ‘does not permit [it] to prioritize any policy goal over the Due Process Clause,’ and ‘enforcement of an unconstitutional law is always contrary to the public interest,” the Clinton appointee wrote, joined by U.S. Circuit Judges Cornelia Pillard and Sri Srinivasan, who are also Democratic appointees.
Karem’s hearing before the D.C. Circuit in March was among the first held remotely as courts across the country adopted new policies to slow the spread of the novel coronavirus.
Represented by Gibson Dunn attorney Theodore Boutrous Jr., the reporter sued in August and won an injunction weeks later from U.S. District Judge U.S. District Judge Rudolph Contreras.
Neither Boutrous nor the Justice Department have returned phone calls seeking comment.
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