Trump vs. Acosta and the Press

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Lawyer 2 Lawyer – Law News and Legal Topics

Trump vs. Acosta and the Press

11/16/2018

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Thomas A. Clare: I do think that there is a lot of theater going on, on both sides. The president is obviously playing to his base in picking this fight and maintaining it and CNN has decided that this is an opportunity for them to try to employ a legal process to outmaneuver Trump at that game.

Charles J. Glasser, Jr.: You can’t blame Trump. Look, I will be the first to say that I think his speech is boorish and ungentlemanly and so on and so forth. All that being said, I don’t blame Maxine Waters for the people who showed up at Tucker Carlson’s house; I don’t blame Trump for the people who say terrible things about ethnic groups. This idea that they have emboldened them just doesn’t hold up.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog named May It Please The Court and have two books out titled ‘How to Get Sued’ and a Christmas children’s book called ‘The Sled’.

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Well, after a tense back and forth between President Trump and CNN reporter Jim Acosta at the White House press conference, there was a brief struggle over a microphone between Acosta and a White House intern, and the White House revoked Jim Acosta’s press pass.

So in a series of tweets, Press Secretary Sarah Sanders said “As a result of today’s incident, the White House is suspending the hard pass of the reporter involved until further notice. This conduct is absolutely unacceptable. It is also completely disrespectful to the reporter’s colleagues not to allow them an opportunity to ask a question. President Trump has given the press more access than any president in history.”

Well, just this week CNN filed a lawsuit against Trump and his administration over Jim Acosta’s White House press credentials, citing violation of the First and Fifth Amendments, harkening back to an older case. So there is a lack of respect for the office and the press and how is this latest incident impacting the relationship?

Well, today on Lawyer 2 Lawyer we are going to discuss President Trump’s relationship with the press, the recent removal of Jim Acosta’s press pass at the White House and CNN’s lawsuit.

And here today to discuss that topic is Charles Glasser, Jr. He is the Professor of Media Law and Ethics at New York University, former Global Media Counsel for Bloomberg News, and a constitutional litigator.

Charles spent 12 years as the global media counsel for Bloomberg, where he was responsible for prepublication review, legal and ethical issues and training over 2,000 reporters in more than 120 bureaus around the world on legal standards and journalistic fundamentals. Welcome to the show Charles Glasser.

Charles J. Glasser, Jr.: Yeah, thanks for having me. It’s good to be here.

J. Craig Williams: And our next guest is Thomas Clare. He is a partner with the firm of Clare Locke, LLP. Tom’s practice is devoted to litigating complex business disputes and vindicating clients against high-profile reputational attacks in print, broadcast, and online media outlets.

Tom is perhaps best known however for representing high-profile clients who are targeted in hostile media investigations or the subject of false statements in the press. Welcome to the show Tom Clare.

Thomas A. Clare: Thank you very much. It’s a pleasure to be here.

J. Craig Williams: Well, as we get started, Charles, I want to lob the first question over to you, kind of just asking a little bit of background on, you heard me introduce this subject matter, what’s the constitutional framework that we are dealing with here in the First and the Fifth Amendments, what’s this lawsuit about and how do we look at this in a legal framework?

Charles J. Glasser, Jr.: Well, that’s a great question and I think that everybody is really trying to figure that out. Cheerleading aside, I have read the papers on both sides and it’s an interesting question. Does an individual reporter have a “First Amendment right to a hard pass?” I personally think that that’s not — Ted Boutrous is the very skilled litigator representing CNN. I think personally that the due process question is if there is a winner for them, that’s it.

(00:04:59)

There is one case that they cited, it’s called the Sherrill case; you have probably read it, we have heard about it, and as litigators will do, one side says that it speaks directly to the matter and the other side says no, it’s actually off point.

Complicating this matter is less the legal framework than the political and factual framework. As you may know, the reason that the White House gave initially, at least, for taking Jim’s pass away was his behavior that he struggled with this young lady to keep the microphone. And I have to say that on that ground more than a few very experienced journalists have kind of not bought that. Jack Shafer and Bob Woodward this morning talked about the behavior in the pressroom.

That being said, even if that does go against “the norm of behavior” in the White House press briefing room, the more important question for Acosta anyway, I think this case and certainly Tom can straighten me out, but I think it’s going to be a matter of due process, was very arbitrary and capricious basis for taking this pass away, or is it in fact, this is the really narrow issue, or is it in fact entirely within the discretion of the President.

J. Craig Williams: So Tom, how do you see this, the Sherrill case seems to hinge on due process, as Charles said, but certainly CNN is arguing the First and the Fifth Amendments? Is this a taking? Is it a violation of Jim’s First Amendment rights? How do you see it?

Thomas A. Clare: Well, I largely agree with Charles’ analysis and also the notion that this is, once we strip away a lot of the theater around it, a due process issue and I suspect that when we get down to the final legal adjudication of it, that will be the ground on which this will turn.

Clearly the White House was depriving somebody of something they previously had and articulated a basis for doing that and the court is going to have to get to the bottom of what level of discretion the White House has to admit people for the purpose of attending these press conferences.

And there are a lot of issues that are kind of swirling around in that due process framework. On the one hand, you have CNN and Acosta making the argument that this is somehow retaliatory viewpoint discrimination that they don’t like his reporting or don’t like the impertinent questions and that he is being targeted for this treatment in a disparate way because of that point of view that he brings to his reporting.

On the other hand, you have a legitimate, it seems to me, need that people might recognize or a court might recognize of a functioning White House to be able to control conduct in a press conference in a way that is both respectful of people’s physical space, when you are talking about resting control of the microphone and so forth, but also having an orderly press conference and putting those issues all in the mix for what’s really going on here is what I think the court is going to have to get to the bottom of.

But the other piece of this, which I think is interesting and hasn’t gotten a lot of media attention, is what are the standards that are in place for credentialing the media to attend the White House press conferences or to have passes for access to parts of the White House that are not open to the public. I could not walk in there without such a pass. And to the extent that those standards were being violated or not being violated or he meets the standards or he doesn’t and if it was taken away for an arbitrary and capricious reason, that’s why I do agree with Charles that I think this will be decided on due process grounds.

I do think that CNN has tried to overstate this argument by making it an individual right and trying to dress it up in things that are a bit of a stretch and I understand from a theater reason why they would invoke those arguments, but I think the lawyers that operate in this space and I suspect the judge will zero in on the due process issue more quickly.

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J. Craig Williams: Well, to respond to your point about Sherrill in the case, he was a pretentious character. He punched another reporter and that was one of the reasons that they used to justify to deny his pass initially. But that case did seem to turn more on due process.

How do we look at the Press Pass? Do we look at the Press Pass the same as like you get a permit from a city to do something and it can’t be taken away without that due process, is that the basis for this, Charles?

Charles J. Glasser, Jr.: I think they are stuck arguing that and I think Tom’s word theatrics is very well taken. They are going to try and make this — I mean again, I read the papers and the motion for the TRO and they want to argue that it’s really about Trump’s dislike for Acosta and he doesn’t like the reporting and the complaint and the motion for the TRO is loaded with statements that Trump has made both on Twitter and at press conferences and of course his rallies about CNN and the fake news and all that sort of nonsense.

J. Craig Williams: Wasn’t that all the capriciousness of it?

Charles J. Glasser, Jr.: Well, I don’t think so. I mean to be honest, I have to say again as a litigator and not really taking a side here, I think that the government made a sort of a strategic mistake insofar as Press Secretary Sanders said that the altercation with the intern was the basis. And as I alluded to earlier, a number of journalism ethicists have said that that wasn’t really the problem, that the issue was that Acosta kept going and he wasn’t asking follow-up questions, he was in fact making statements. He was like Jorge Ramos using the opportunity to lecture the President. And I think as far as facts go, that’s where the court is really going to have to dig into facts.

I had a question for Tom and that is, I am curious as a litigator, why do you think that they named the individual Secret Service agent as a defendant?

Thomas A. Clare: It’s a really good question. I am not 100% sure, but I think it was likely to make sure that they had a defendant in the case, who was sort of a party and able to file pleadings and take a position on the security and physical access aspects of this whole thing. If that conduct was going to be asserted as a basis to be able to have someone whose responsibility in the case was to speak to that aspect of it. It was a little bit puzzling.

Charles J. Glasser, Jr.: Yeah, but the removal of the hard Press Pass isn’t the Secret Service.

J. Craig Williams: No, but he is the person who said, when Acosta came to the White House and he said here is my pass, that Secret Service agent was the one who answered him and said you are denied.

Charles J. Glasser, Jr.: Yeah, yeah. No, that’s quite possible and maybe what Tom said earlier makes me think that it also could short circuit any defense claims of immunity; suing the president is not easy.

J. Craig Williams: It’s hard to get service on.

Charles J. Glasser, Jr.: Well, it’s not just the service, but I mean you remember during the Monica Lewinsky scandal that Lanny Davis tried the Soldiers’ and Sailors’ Act to keep Clinton from being deposed, arguing that as commander in chief he couldn’t be interfered with. That was a Hail Mary, but it will be interesting.

I kind of wondered if it was a way of — almost a discovery tool by making him a party, it’s easier of course to demand discovery than a third party subpoena.

Thomas A. Clare: I also think kind of knowing the Gibson approach to litigation, their belt and suspenders effort to make sure that — I mean can you imagine with all the fanfare with which this lawsuit was filed and promoted by CNN and Gibson and others associated with this in the press, to get dismissed on some sort of a technicality that you didn’t name an individual who had deprived Acosta of access to the physical grounds, you just can’t swing and miss on something like that.

And so whether it was legally necessary or strategic or tactical, I viewed it as sort of belt and suspenders to defense against any of that, but we will see how it plays out as the court finishes this hearing.

J. Craig Williams: How much Tom, does it hurt Acosta’s and CNN’s case that he crossed the line and was lecturing the president? I mean if he had been asking a legitimate question, that was being asked in the general public, would that have helped him?

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Thomas A. Clare: Maybe. I do think there is an important distinction here to be made and this goes directly to your question between what is a matter of tradition and a matter of the way in which these press conferences have traditionally been handled by other administrations and what is legally significant. And a lot of what, not just in this particular Acosta incident, but in other incidents that the press has been complaining about with this president is more in the former. It’s a break from the way that they are used to covering the White House and the way that the tradition has evolved with those sorts of things, and the manner in which you ask a question and the decorum and handling follow-up questions and mike time and all of those sorts of things.

Those do not rise to the level of legal significance where you have this vested right to have it done the way it’s been done for the last 20 or 30 years. And I don’t think that a lot of rank and file journalists really understand that. They believe, not from a legal perspective, but they believe that there is an entitlement to a continued level of access and a continued approach of the way that they have always done it.

I do think that going back to your question that the optics of this are hurt for him by the lecture and by whatever we want to make of the microphone piece of it and the ethics of taking more time and not asking legitimate follow-up questions. It just hurts the optics for CNN and for Acosta in a way that — on the other side of the equation, you have the optics of President Trump’s tweets about CNN in particular and his singling out of CNN historically in some of his tweets and fake news and all of those things.

I suspect when push comes to shove, neither of those things are going to be legally significant and it’s really going to get down to how the court characterizes this right of access to the physical premise and then the ability to function as a reporter in the press conference.

J. Craig Williams: On the other side Charles, what effect does the fact that or presumed fact, alleged fact that the video has been doctored by the White House and released?

Charles J. Glasser, Jr.: Yeah, I think we ought to correct or at least flag that for a second, because I do not believe, and I have looked at this carefully, I do not believe the video was doctored. Doctored implies a — and I don’t mean to defend one side or another, but doctored implies an intent to deceptively edit. Go back to Katie Couric intentionally inserting blank spaces of people to make them look dumb in a gun control debate, that’s not what happened here.

You have to remember that the video that Sanders selected, I am just trying to be fair here, was in the MP4, FLV format and it was converted to the GIF format and what happens in that case is the frame rate changes. So things naturally get — or look speeded up and I don’t think that this was doctored and I think that’s static. I think that’s more atmospherics and theater.

When it gets right down to it, going back to a point that Tom raised, and I think the word decorum is really going to be central, at least any substantive argument about the president’s discretion. I could not — for instance, I have been in cases, I have argued for court access, where we wanted reporters to be able to attend closed cases or other sensitive cases or even get TV cameras in certain cases. And it’s a tough road to hoe because decorum is well within a judge’s framework, and I can see a number of judges in the District of Columbia sort of asking themselves the same question.

Judges, for the most part, are not very tolerant of monkey business in the court. I mean Tom, I think you would agree, if a reporter stood up and started barking questions, they would be shown the door in a heartbeat, if not held in contempt. It’s not quite analogous with a White House press conference, but I think most judges are going to be sensitive to the idea of decorum. The counterargument that the left will certainly make is that Trump being Trump has thrown decorum out the window with his tweets and his language and so on and so forth.

J. Craig Williams: And that’s a good point to get to, but let me interrupt here and throw in a quick interruption. Before we move on to our next segment we are going to have to take a quick break and here a message from our sponsor. We will be right back.

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J. Craig Williams: Welcome back to Lawyer 2 Lawyer, I am Craig Williams and we are joined by Charles J. Glasser, Jr., Professor of Media Law and Ethics at New York University, former Global Media Counsel for Bloomberg News as well, and also constitutional litigator Thomas Clare, partner with the law firm of Clare Locke, LLP

Right before the break we were talking about decorum and Charles I think correctly pointed out my next question to Tom which is, the opposite or slash of that pen is that Acosta may have not treated Trump with decorum, but there is little argument that Trump has treated Acosta with decorum?

Thomas A. Clare: Well, I think in a legal framework that it’s asymmetric. I don’t think that a White House that is trying to maintain order and control over its press conferences, where it’s managing not just Acosta, but dozens of other reporters and news organizations, each of which have a different format and media and there is all sorts of sensibilities that have to be managed in terms of time and a limit of access to time, those are sorts of logistical constraints that every administration has to deal with and may prioritize those things differently and may define decorum differently, much in the same way that, to use Charles’ excellent example, that different judges might run their courtrooms differently and allow a different level of formality or informality.

But the same is true, nobody gets to say well, this judge is harsher and he is more laidback, therefore it justifies an outburst from the gallery that would get somebody ejected from courtroom because of the judge’s demeanor.

J. Craig Williams: No, but we have also all seen the difference between civil court and criminal court. I mean the insanity of a Master Calendar criminal courtroom where you have got the prosecutor and the public defender and side deals and attorneys up in the jury box and people talking with the clerk, just the insanity of a criminal courtroom compared to the decorum of a federal court, where the judge is sitting up on the marble.

You make a good point, but really is there — Charles has said and I think correctly pointed out that Trump has tweeted about specific issues with CNN. How does that play into it, not just the way that they run the conferences?

Thomas A. Clare: Yeah. I mean I do think it feeds into CNN’s argument that it provides ammunition for CNN to say this was not something that was based on some neutral principle of decorum, but rather we can look at the statements from the president and say this was an extension of his viewpoint disagreement with CNN in particular and Acosta’s reporting.

So I think it feeds into that, and like every good litigator, CNN is milking that for as much as they can, much in the same way I might add that the opponents of the administration’s travel ban were relying on Trump’s tweets and statements in an effort to try to characterize what the travel been did or didn’t do.

I think it’s — you always say in court if you have got the steak, you sell the steak, if you have got the sizzle, you sell the sizzle, and I think the Trump tweets are probably more sizzle than steak here, but sometimes it’s sizzle that win cases.

J. Craig Williams: And how does that play into the First Amendment, we take now talking about content, all of a sudden we are talking a different amendment?

Charles J. Glasser, Jr.: Well, if I may, Trump’s obvious and there is no secret about his dislike for CNN, and I do think that Boutrous, Gibson and CNN, they are trying to bootstrap the obvious dislike for CNN into the First Amendment side of the argument, but to be fair, Acosta is called upon. He is not ignored. The president gets to choose which reporter he chooses to ask a question, and I am not sure about the number, but I think Acosta has been allowed 22 opportunities, and I can tell you that I have friends in that room who would love the opportunity to ask questions and haven’t been chosen yet.

(00:25:00)

So I do think that it’s Trump’s tweets and Trump’s stuff, like Tom pointed out, in the first travel ban case, they were successful in leveraging that into something, but at the end of the day the First Amendment argument is going to have to hinge on almost, I don’t want to say actual malice, but it’s going to have to hinge on what was going on in Sanders or Trump’s head as to why the pass was revoked.

And if they want to really try and probe that motivation and argue that it was content-based, I think they are going to have a very, very hard time doing that. Especially when the record and the video un-doctored or otherwise shows that Acosta was certainly, well, let’s be generous and say bending the rules or pushing the envelope. I don’t really think the First Amendment argument is either strong and to some degree I am not even sure it’s a question that a jury can answer.

J. Craig Williams: Tom, have we reduced this down to a tempest in a teapot, is this the theater that we have kind of regularly mentioned, is this the way that a reality television star gets theater and ratings?

Thomas A. Clare: Well, there is a lot of theater here on both sides of this, to your question about the First Amendment. I mean a lot of the rhetoric of the legal proceedings and the First Amendment and the right of access and the people’s right to know and all of that, as a legal matter, as a purely law review legal matter is not particularly relevant or on point.

I mean one of the things that the First Amendment tells us is that journalists do not get a special hall pass to disobey rules or laws of general applicability, that they are responsible for their behavior in the same way as everybody else is and just because you have a Press Pass or you have access to something, the First Amendment is not magical pixie dust that somehow immunizes people from any sort of scrutiny of the way they behave or the like.

And so I actually think yes, there is a lot of theater on both sides here and this is the culmination of this brewing battle between the president and the CNN that both sides decided to join now. I do think that there is a lot of theater going on, on both sides. The president is obviously playing to his base in picking this fight and maintaining it and CNN has decided that this is an opportunity for them to try to employ a legal process to outmaneuver Trump at that game.

J. Craig Williams: I think we have just about reached the end of our program, so it’s time to wrap up and get your final thoughts, along with your contact information if you would like to pass that along to our listeners.

But to kind of end it on a more serious note, there have been allegations that the whole brouhaha that we are talking about has resulted in extremist groups or people or more alternative groups attacking journalists physically. Are we stoking that? In your final thoughts I would kind of like to have you address that issue, so Charles let’s turn it to you first.

Charles J. Glasser, Jr.: Yeah, I have read that a lot and I have to disagree with it. As you may know, I write a biweekly column for The Daily Caller on media law issues and one of my recent columns was that I think that that argument falls apart, and on the law there has to be a connection of proximity and geography and time to blame a speaker for the bad acts of other people and that is a slippery slope. –

J. Craig Williams: The fire in a theater?

Charles J. Glasser Jr.: Well, remember, that’s dicta, but it’s true, in the theater, but you can’t blame Trump. Look, I will be the first to say that I think his speech is boorish and ungentlemanly and so on and so forth. All that being said, I don’t blame Maxine Waters for the people who showed up at Tucker Carlson’s house; I don’t blame Trump for the people who say terrible things about ethnic groups. This idea that they have emboldened them just doesn’t hold up. Unfortunately, we have had idiots among us for a long time.

J. Craig Williams: Good. And your contact information, if you would like our listeners to reach out to you?

Charles J. Glasser Jr.: I am online at charlesglasser.net and I am easily found on the Google.

J. Craig Williams: Great. G-L-A-S-S-E-R?

Charles J. Glasser Jr.: Yep, .net.

J. Craig Williams: Wonderful. And Tom?

(00:30:00)

Thomas A. Clare: Sure. In terms of the final comment on that, I agree and obviously I agree completely with Charles about the incidents where there is physical violence against the press, it’s obviously terrible and not to be condoned, but it is not as if those people are not subject to the normal punishments of the law because Trump happens to be in office.

I mean everybody is accountable and were accountable before Trump was elected and will be long after he is gone. So I don’t see the connection, I don’t see the tone at the top argument holding much weight for that.

And as someone who operates in this space, I get very tired of hearing about the war on the press because the president tweets certain things or engages in language that is designed to stoke people’s passions about the press. There are countries in the world where there is a legitimate war on the press and crackdown by authoritarian regimes, that’s not what’s going on here, and I think it demeans those sorts of legitimate struggles that journalists around the world face to suggest that every presidential tweet rises to that level of slighting journalists, which all things being equal in this country, they have it exceedingly well. And the fact that we are talking about this aspect being adjudicated in a federal court, under a rule of law is just the testament to how well our system does function.

Charles J. Glasser, Jr.: At the risk of I know running over and all, but I had to second that to the degree that one of my classes, it’s mostly international students, and I asked them, I polled them, especially the ones from China and I said, how many of you think — what would happen rather if somebody did this at a press conference with Xi Jinping?

And the Chinese students laughed out loud. They said first off, the air would be cut and the reporter would disappear. And as you know, in Mexico, they don’t tweet mean things about you, they kill you, they kill you. And I think that oh, President Trump was mean to me is very — it’s an awfully parochial and narrow view.

You are quite right, try this in Saudi Arabia sometime.

J. Craig Williams: As we just witnessed.

Charles J. Glasser, Jr.:  Yeah.

J. Craig Williams: Right. Tom, you were going to give us your contact information.

Thomas A. Clare: Sure. I am easily found at my law firm’s website, that’s www.clarelocke.com and easily found on the Google as well.

J. Craig Williams: Great. Gentlemen, thank you very much for your participation today.

And that brings us to the end of our show. If you like what you hear today, please rate us in Apple Podcasts. You can also visit us at legaltalknetwork.com, where you can leave a comment on today’s show and sign up for our newsletter.

I am Craig Williams. Thanks for listening. Join us next time for another great legal topic.

When you want legal, think Lawyer 2 Lawyer.

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