White House Press Secretary Sarah Huckabee Sanders only made the legal situation worse for President Donald Trump this week by issuing an easily fact-checked response to the CNN lawsuit seeking the return of Jim Acosta’s press pass.
Trump revoked Acosta’s pass after the veteran reporter sought to ask him tough questions during a press conference last week.
For her part, Huckabee Sanders went on to share a doctored video in order to accuse Acosta of inappropriately touching a White House intern who tried to forcibly take a microphone out of his hands.
It’s a violation of the First and Fifth Amendments, which is why CNN filed a lawsuit this week.
This morning, CNN filed a lawsuit against @realDonaldTrump and top aides. The White House has violated CNN and @Acosta‘s First Amendment rights of freedom of the press and Fifth Amendment rights to due process. Complaint: https://t.co/43oX6L8xA7 pic.twitter.com/RvJ0Cgh6oi
— CNN Communications (@CNNPR) November 13, 2018
In response, Huckabee Sanders put out a statement defending Trump’s decision to ban Acosta from the White House.
This is just more grandstanding from CNN, and we will vigorously defend against this lawsuit,” she began.
CNN, who has nearly 50 additional hard pass holders, and Mr. Acosta is no more or less special than any other media outlet or reporter with respect to the First Amendment. After Mr. Acosta asked the President two questions — each of which the President answered — he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions. This was not the first time this reporter has inappropriately refused to yield to other reporters.
“The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional,” the statement concluded.
And the statement was a colossal mistake that will likely result in CNN prevailing.
Washington Post media critic Erik Wemple analyzed the response, and proceeded to list all the problems with it and explain why it represents a host of legal liabilities that won’t work out so well in court.
First of all, Wemple pointed out that accusing Acosta of “grandstanding” is seriously hypocritical because that’s the behavior Trump and his team engages in every day.
Then he observed Huckabee Sanders’ mistake of excusing the ban by saying that CNN has 50 other pass-holders.
“Time to amend the original CNN complaint in this case,” Wemple wrote. “With this little flourish, the White House appears to be suggesting that, hey, CNN doesn’t need its chief White House correspondent — it can get along just fine with all those other pass-holders. Never has the White House voluntarily summed up its anti-mediaism in so few words.”
Huckabee Sanders also laughably portrays herself as a defender of the press despite attacking them as much as Trump does. She has also refused to condemn Trump’s characterization of the press as the “enemy of the people.”
But she also left out the biggest stated reason why Acosta was supposedly banned.
“An omission: Sanders appears to have bailed on a previous statement accusing Acosta of “placing his hands” on an intern at last week’s press conference who was attempting to retrieve a microphone,” Wemple wrote. “As the New York Times reported, Sanders relied on misleading video to lodge the allegation.”
And that’s a change of story that will be noted in court.
“The fact that the defendants’ explanation shifts is often evidence that it’s a pretext for the real reason,” First Amendment attorney Nathan Siegel told Politico.
“I can’t think of anything that is likely to lead to a victory for the White House,” First Amendment lawyer Floyd Abrams added.
In short, the White House does not have a legal leg to stand on. And if they did, Huckabee Sanders cut that leg right off.
“There’s a reason why lawyers commonly insist that defendants in civil suits respond with short and boring statements, such as, We will vigorously fight this litigation,” Wemple concluded. “CNN surely thanks the administration for this three-paragraph gift package.”
The question is whether the judge in this case, Timothy J. Kelly, will agree with CNN. After all, he was appointed by Trump in 2017 and we all know that Trump probably expects Kelly to side with him as repayment for the job he gave him.
Should Kelly do exactly that, it would be a further breakdown of judicial credibility in this country. No judge worth their salt would side with Trump on this matter. Acosta’s and CNN’s First and Fifth Amendment rights were violated by a White House that does not like tough questions from the press. That’s why Acosta was banned, and it’s why the court must rule against Trump.
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