The Corner

Law & the Courts

Trump Appointee Judge Rules for CNN. Good.

CNN’s Chief White House correspondent Jim Acosta departs after a judge temporarily restored his White House press credentials following a hearing at U.S. District Court in Washington, D.C., November 16, 2018. (Carlos Barria/Reuters )

Those who have argued that Federalist Society judges would be little more than rubber stamps for the Trump administration simply don’t understand the culture and judicial values of the Federalist Society. Case in point — earlier this morning Trump-appointed judge Timothy Kelly ordered the White House to immediately reinstate Jim Acosta’s press pass:

In a victory for the cable network and for press access generally, Judge Timothy J. Kelly granted CNN’s motion for a temporary restraining order that will prevent the administration from keeping Acosta off White House grounds.

The White House revoked the reporter’s press pass last week after a heated exchange between him and President Trump and a brief altercation with a press aide at a news conference. Acosta, CNN’s chief White House correspondent, is the first reporter with a so-called hard pass to be banned.

The judge issued his ruling at a hearing this morning, and the contours of his decision followed conventional First and Fifth Amendment doctrine:

In his decision, Kelly ruled that Acosta’s First Amendment rights overruled the White House’s right to have orderly news conferences. Kelly said he agreed with the government’s argument that there was no First Amendment right to come onto the White House grounds. But, he said, once the White House opened up the grounds to reporters, the First Amendment applied.

He also agreed with CNN’s argument that the White House did not provide due process. He said the White House’s decision-making was “so shrouded in mystery that the government could not tell me . . . who made the decision.” The White House’s later written arguments for banning Acosta were belated and weren’t sufficient to satisfy due process, Kelly said.

This is correct. Those who’ve argued on Twitter that “no one has a right to a press pass” aren’t quite grasping the case. The core question revolves around the circumstances under which a press pass once granted can be revoked. The analogy is imperfect, but consider campus due-process cases. No one has a freestanding right to admission to, say, the University of Michigan or the University of Tennessee, but once admitted the student has a liberty interest in their continued enrollment in the university, and the school can’t expel them without some form of due process.

To be clear, this is a preliminary ruling, based on an undeveloped factual record (in fact, the factual “mystery” was key to the judge’s ruling), so the case may well change as it continues in the district and (perhaps) moves through the appellate courts. But for now, based on the facts as they’re currently understood, the judge has made a correct and important ruling.

Acosta has behaved abysmally on a number of occasions, but conservatives should not let their hostility to Acosta or CNN override the larger constitutional principles. Fox News understands the stakes. It not only signed on to an amicus brief in support of CNN, it issued a strong statement, declaring “Secret Service passes for working White House journalists should never be weaponized.” That’s exactly right. Today’s ruling protects a reporter who’s undeniably hostile to a Republican president, but it also protects reporters who may ask hostile questions of future progressive presidents.

Well done, Judge Kelly. Today you helped demonstrate that the Federalist Society judicial revolution is about the Constitution, not partisan advantage.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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