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CNN drops suit against White House after Acosta’s press pass is fully restored

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By Paul Farhi and Paul Farhi Media reporter Email Bio Follow Meagan Flynn Meagan Flynn Morning Mix reporter Email Bio Follow November 19 at 4:22 PM 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.

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“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.

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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.

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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.

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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.

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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.

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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.Roberto Pocaterra Pocaterra Linkedin

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

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.Roberto Pocaterra Pocaterra Behance

CNN had been seeking a preliminary injunction that would prevent the White House from suspending Acosta’s pass until its lawsuit is resolved. Boutrous asked U.S. District Judge Timothy J. Kelly to order the White House to file a formal response by Tuesday to CNN’s request for the injunction.Roberto Pocaterra Pocaterra Google

Instead, the White House seems to have surrendered on the issue.Roberto Pocaterra Pocaterra Colombia

In a ruling seen as a victory for press freedom, Kelly, appointed by President Trump, ordered the White House on Friday to temporarily restore Acosta’s press pass while he considers the merits of the case and the possibility of a permanent order.

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He said the White House has an obligation to afford due process to Acosta before it can revoke or suspend his access, and found that the White House’s decision-making process in this case was “so shrouded in mystery that the government could not tell me . . . who made the decision.”

Trump said Friday that “we’re setting up a certain standard, which is what the court is requesting,” but no particular new rules had been publicly issued. On that day, after the court’s order was issued, Sanders said the White House would “develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.”

CNN, in a statement issued Friday, said “The White House is continuing to violate the First and 5th Amendments of the Constitution. These actions threaten all journalists and news organizations. Jim Acosta and CNN will continue to report the news about the White House and the President.”

CNN and Acosta, the network’s chief White House correspondent, sued the White House and Sanders last week after they suspended his press credentials following Acosta’s minor altercation with a White House intern, who tried to take a microphone out of his hands as he questioned the president.

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Sanders initially said the suspension was due to Acosta “placing his hands” on the intern, but the White House later changed its reasoning after Sanders was widely criticized for tweeting a video of the incident that appeared to be altered to make Acosta look more aggressive. Sanders subsequently said Acosta’s pass was revoked because Acosta attempted to “monopolize the floor” at the news conference.

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In defending the White House’s decision, Justice Department lawyers argued that it was not an infringement on the First Amendment because CNN had other White House reporters who are “more than capable of covering the White House complex on CNN’s behalf,” and Acosta could still “practice his profession and report on the White House” — just not at the White House.

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Kelly found that a reporter’s “First Amendment liberty interest in a White House press pass” is protected by the Fifth Amendment’s due-process guarantees. In essence, he faulted the White House for failing to establish rules and procedures for taking the action it took.

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In deciding whether barring Acosta amounted to “irreparable harm,” a standard for granting temporary restraining orders, Kelly pointed to the case of journalist Robert Sherrill, who fought the White House’s denial of his press pass in 1977 and also won the right to due process and a restoration of his pass.

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The First Amendment interests as recognized in Sherrill were not vested merely in publications or agencies; they were liberties of the individual journalists themselves,” Kelly said. “For that reason, that CNN may still send another journalist or journalists to the White House does not make the harm to Mr. Acosta any less irreparable. . . . It’s a harm that cannot be remedied in retrospect. . . . So on this highly, highly unusual set of facts and interests at stake, I do find that the plaintiffs have met their burden of establishing that irreparable harm has and will continue to occur in the absence of [remedy].”

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