Patterico's Pontifications

11/13/2018

CNN and “Showboat Jimmy” Acosta Sue Trump Over Revocation of Press Credentials

Filed under: General — Patterico @ 7:02 am



Donald Trump has just been thrown into the briar patch:

CNN is filing a lawsuit against President Trump and several of his aides, seeking the immediate restoration of chief White House correspondent Jim Acosta’s access to the White House.

The lawsuit is a response to the White House’s suspension of Acosta’s press pass, known as a Secret Service “hard pass,” last week. The suit alleges that Acosta and CNN’s First and Fifth Amendment rights are being violated by the ban.

The suit is being filed in U.S. District Court in Washington, D.C. on Tuesday morning, a CNN spokeswoman confirmed.

Both CNN and Acosta are plaintiffs in the lawsuit. There are six defendants: Trump, chief of staff John Kelly, press secretary Sarah Sanders, deputy chief of staff for communications Bill Shine, Secret Service director Joseph Clancy, and the Secret Service officer who took Acosta’s hard pass away last Wednesday. The officer is identified as John Doe in the suit, pending his identification.

The legal grounds for the lawsuit?

In a statement on Tuesday morning, CNN said it is seeking a preliminary injunction as soon as possible so that Acosta can return to the White House right away, and a ruling from the court preventing the White House from revoking Acosta’s pass in the future.

“CNN filed a lawsuit against the Trump Administration this morning in DC District Court,” the statement read. “It demands the return of the White House credentials of CNN’s Chief White House correspondent, Jim Acosta. The wrongful revocation of these credentials violates CNN and Acosta’s First Amendment rights of freedom of the press, and their Fifth Amendment rights to due process. We have asked this court for an immediate restraining order requiring the pass be returned to Jim, and will seek permanent relief as part of this process.”

Here is the legal analysis I would like to be able to give:

LOL no.

Give up the mic next time you’ve asked your question, Jimmy.

They might have given the credentials back after a while before this. Now, I think Acosta is gone for good.

I’d probably be a more popular blogger if I left my analysis at that, but it looks like the actual analysis is, annoyingly, a little more complicated. Believe it or not, CNN and Acosta may have a case.

The following analysis is still brief and “blog-tentative” — meaning it’s worth what you’re paying. (Less than that, if you’re subscribing, which you can do by clicking the button on the sidebar.) The main case people seem to rely upon in these situations is Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). The court there rejected what you would naturally tend to think is the rule: that any denial of access is fine if it’s not done based on viewpoint. (Even with that rule, Trump’s big mouth would give the plaintiffs plenty of grist for a “he banned me because of my viewpoint” mill.) Here’s the court’s analysis on that issue:

Appellants argue that because the public has no right of access to the White House, and because the right of access due the press generally is no greater than that due the general public, denial of a White House press pass is violative of the first amendment only if it is based upon the content of the journalist’s speech or otherwise discriminates against a class of protected speech. While we agree with appellants that arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment, there exist additional first amendment considerations ignored by appellants’ argument.

These considerations can perhaps be best understood by first recognizing what this case does not involve. It is not contended that standards relating to the security of the President are the sole basis upon which members of the general public may be refused entry to the White House, or that members of the public must be afforded notice and hearing concerning such refusal. The first amendment’s protection of a citizen’s right to obtain information concerning “the way the country is being run” does not extend to every conceivable avenue a citizen may wish to employ in pursuing this right. Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged. It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all. Finally, appellee’s first amendment claim is not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.

Rather, we are presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Pell v. Procunier, 417 U.S. 817, 829-35, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons.

I think that “controlling a disruptive reporter who won’t surrender the mic” would clearly qualify as a compelling governmental interest. Just like judges can control their courtrooms, and remove disruptive participants, the White House has the ability to make sure that reporters take turns and don’t refuse to give up the mic (and that they don’t stand up and shout over others, April Ryan).

That said, Acosta’s behavior, while not exemplary, was not really that over the top. No, he didn’t assault the woman. Yes, he refused to give up the mic, but only briefly. Yes, it’s part of a pattern. Enough of one to avoid the legal roadblocks? That’s not clear.

Even if the White House could be justified in their decision — and I think that’s a close call — they don’t seem to have complied with the necessary procedure spelled out by the court:

We think that notice to the unsuccessful applicant of the factual bases for denial with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons.

As I understand it, they gave Acosta no notice or chance to respond in a formal way before issuing the decision. They just revoked his credentials. I’m very dubious about calling access to the press room a personal right that deserves these sorts of protections before it can be withdrawn, but if this case is the relevant precedent (something I can’t establish with this bloggy level of analysis), the White House may not have complied.

Moreover, the lawsuit has not been uploaded to PACER yet, so I don’t know if they cite any of Trump’s numerous comments about Acosta in the past, and whether any of the comments they do cite (if they do) deal with Acosta’s viewpoint. Again, Trump’s mouth often causes him legal problems.

I find this personally annoying, but Showboat Jimmy may — may, I say — have a case.

[Cross-posted at The Jury Talks Back.]

93 Responses to “CNN and “Showboat Jimmy” Acosta Sue Trump Over Revocation of Press Credentials”

  1. Ding.

    Patterico (115b1f)

  2. Just cite how FDR and LBJ (both Dems) treated the press. Acosta’s case is think at best.

    Gryph (08c844)

  3. 2. *thin

    Gryph (08c844)

  4. Interesting analysis. So if the court determines that the White House acted too rashly in revoking Acosta’s pass, the WH can at least provide formal notice to Acosta that they are considering revocation, and give Acosta the opportunity to apologize and pledge to do better in the future? I also would think that there is no such thing as a right to be called upon at WH press conferences, so Sanders and Trump and anyone else would be within their rights to purposely freeze him out and not field any questions from him.

    JVW (42615e)

  5. When the Obama administration tried to curtail Fox News access, was this decision ever cited? Also, I am curious about the application of this rule to web based organizations. I mean, Gateway Pundit scored a press pass. Does this entitle some similarly flaky leftish website to a pass? Or some alt-right nightmare of a site?

    Appalled (c9622b)

  6. I don’t think he has a constitutional right to a white house press pass. If Acosta wins in court and his White House press pass is returned could they just not call on him in future press conferences? If they can’t stop him from being there just don’t give him the microphone again.

    Mattsky (55d339)

  7. Donald Trump has just been thrown into the briar patch:

    Ha, ha, ha! Absolutely true, Patterico, but I wonder how many here know the Br’er Rabbit and Br’er Fox stories.

    For those of you from Rio Linda, it means that CNN did what Trump wanted them to do.

    nk (dbc370)

  8. The WH could just give press credentials to someone else at CNN whose name doesn’t end with Acosta. Problem solved.

    Paul Montagu (70fe18)

  9. I don’t think he has a constitutional right to a white house press pass.

    No, but he has a right to due process from the government. If there is a process that was established they need to follow it whether he’s a jerk (he is) or not. It’s the same right that I have to be treated just like everyone else at the DMV or when I apply for a permit to put a fence up. The city can’t change me more just because they don’t like me.

    Time123 (ca85c9)

  10. No need for wild guesses. Let’s just wait for the tweet.

    nk (dbc370)

  11. What info did acosta elicit, it was more often a monologue conveying the rizzotto tray viewpoint.

    Narciso (bc40f9)

  12. Now the way south park has become a tool of mann and co, that’s something else again.

    Narciso (bc40f9)

  13. The Twitterinchief this morning is this of all things
    https://twitter.com/realDonaldTrump/status/1062333882610171907

    A bit Delphic, I think.

    kishnevi (d764f4)

  14. What are the criteria for issuing a PP? Isn’t there some behavioral standard that must be adhered to? Acosta has become more and more demanding and showboating, demanding increased time to the detriment of the other reporters present. Granted with limited time, not everyone gets a chance to ask a question every press conference, however someone intentionally hogging the mic is a disturbance and should be quashed. Mr. Montagu’s solution appears to be the most efficient

    Angelo (af1c38)

  15. Freedom of speech is only what we’ve decided beforehand:

    https://donsurber.blogspot.com/2018/11/the-eerie-capitulation-of-south-park.html?m=1

    Narciso (bc40f9)

  16. 14. Press passes have traditionally been handed out at the pleasure of the White House Press Office. There is wide precedent, most notably FDR and LBJ (both Dems, eh?) for suspension of press passes over personal vitriol.

    To wit, FDR was known to have one of the most restrictive press policies of the modern era. No letting it out that he was in a wheelchair, and no quoting him directly without prior authorization.

    LBJ on the other hand, got a kick out of his control over the press and had a reputation for being quite crude, to the point of taking meetings and press gaggles in the bathroom with his pants around his ankles.

    Gryph (08c844)

  17. 6. Here’s the thing: Revoking Acosta’s press pass does not impinge on his right to free speech. He is still free to characterize the White House in whatever manner he desires without fear of fine or imprisonment. He can even do so dishonestly should he so choose, and all the threats in the world from Donald Trump or anyone else won’t change that.

    Gryph (08c844)

  18. We all know that the invasion is fake news, right?

    AZ Bob (885937)

  19. In the case cited as precedent, Sherrill never had a White House press pass before, was making his first request, and was denied for unstated reasons by the Secret Service.

    That is not the same circumstance as for Acosta. The White House had put up with his antics for two years, without ever denying him a PP. He crossed a line in a public fashion, had it revoked as a result, and cannot credibly claim to not know why.

    That said, I’m not a lawyer, so your “penumbras” mileage may vary.

    Munroe (731be7)

  20. At the next presser, the entire press corps should kneel. Then again, DJT would like that.

    Ed from SFV (6d42fa)

  21. Zeleny and co, were just printing fusion press releases and leaks from wolfe

    https://dailycaller.com/2018/11/13/senate-joseph-mifsud-papadopoulos/

    Narciso (bc40f9)

  22. Gryph:

    The court case Patterico cites dates to the 70s — after FDR and LBJ. So, despite what sounds right to you (and me), that old precedent doesn’t govern here.

    Basically, the decision Patterico cites argues that, as long as press facilities are available at the White House, credentials can’t be denied for reasons having to do with the employee’s political viewpoints. This is why the WH has concentrated on the wrist/mike grabbing incident — that’s not a political thing. Of course, a judge can always say that’s just a pretext (and Trump may well tweet or say something that would give the judge cover.)

    The idea that Acosta has a case here is actually troubling. I can see that a good rule would be that the reporter has to actually ask a question — and not pontificate (as Acosta was doing before his mike was lifted). A press conference is not and should not be the US equivalent of UK question time.

    Appalled (c9622b)

  23. The next presser would be at the White House fence, if I had anything to say about it. “I’m sorry, ladies and gentlemen, but we have been accused of discrimination in the issuance of White House passes, and until that is resolved, no member of the media will be given a White House pass.”

    Ha, ha, ha! Like Trump could survive a day without media attention. They would have to put him on methadone.

    nk (dbc370)

  24. CNN who.

    mg (9e54f8)

  25. People should be asking – What’s a CNN?

    mg (9e54f8)

  26. 22. Jeebus H. Tapdancing… We’re *STILL* letting the courts decide these questions?! Federal courts are a branch of the federal government. Isn’t letting them rule on this an inherent conflict of interest?! SMDH

    Gryph (08c844)

  27. even if they let the cnn jake tapper fake news trash in there’s no rule that they have to call on them is there

    happyfeet (28a91b)

  28. Doesnt CNN have any blonde bimbos lying around, or for that matter a Roy Cohn-esque fluffer (when that one isnt servicing Cooper or Lemon).

    urbanleftbehind (5eecdb)

  29. CNN should take a lessen from the French. Just wave the white flag, its what they do best.

    mg (9e54f8)

  30. Having Acosta ask questions at the press conference generally helps Trump….as it gives him the belligerent foil he seeks. And I think Trump would love to establish some legal precedent that his administration can control the decorum (absent viewpoint discrimination) of the event…so he is probably thanking CNN for the suit. Even in the unlikely event that Trump loses the suit, he could move to freeze out Acosta until Acosta and CNN would offer some sort of public apology to the intern and to the other media present. I just can’t see Trump losing this narrative….I mean until the 2am Twitter feed pulls it into the gutter…

    AJ_Liberty (3c84de)

  31. Showboat Jimmy Accostah

    Colonel Haiku (311cb7)

  32. 26. — I guess you aren’t much of a Separation of Powers kind of guy.

    Appalled (c9622b)

  33. You can read the complaint here.

    It seems ridiculous and petty that the Secret Service officer who took Acosta’s hard pass is also included as a defendant (John Doe).

    White House responds:

    “We have been advised that CNN has filed a complaint challenging the suspension of Jim Acosta’s hard pass. This is just more grandstanding from CNN, and we will vigorously defend against this lawsuit.
    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 First Amendment is not served when a single reporter, of more than 150 present, attempts to monopolize the floor. If there is no check on this type of behavior it impedes the ability of the President, the White House staff, and members of the media to conduct business.”

    Dana (023079)

  34. 26. Separation of powers? What does that have to do with the fact that the federal government has been ruling on its own powers for most of our republic’s existence? I guess you’re aren’t much of a constitutional originalist guy.

    Gryph (08c844)

  35. 30. That precedent has already been set by FDR and LBJ.

    Gryph (08c844)

  36. Dana @33. That is a measured, thoughtful, informed, and intelligent statement. Hmm. Are you sure it’s from the White House?

    nk (dbc370)

  37. It seems ridiculous and petty that the Secret Service officer who took Acosta’s hard pass is also included as a defendant (John Doe).

    Necessary party rule.

    nk (dbc370)

  38. 36. “From the White House” !+ “From Trump”

    Gryph (08c844)

  39. @35, legal precedent is different from common practice….the FDR treatment was never litigated…and may represent war-time cultural norms that some might consider dated. We even generally look at legal precedent like Korematsu from that period differently. Personally I think Trump is fine since CNN has other press pass holders who can ask questions and otherwise participate.

    AJ_Liberty (3c84de)

  40. 39. Yeah yeah yeah…and LBJ dropped trou in front of staffers and journalists during the Vietnam War. I get that. But I don’t think that lawyers have any business litigating that question; if the White House is required to grant a press pass to anyone, where does it stop? Does the White House then have to go to court every time it wants to suspend a press pass?

    Gryph (08c844)

  41. if i was President Trump whenever the cnn jake tapper trash-monkey asked a question i’d cover my ears and sing MARY HAD A LITTLE LAMB

    really loud to where nobody could hear the stupid trash-monkey’s question

    this is a good strategy because it’s been proven effective in many different situations

    happyfeet (28a91b)

  42. Jeebus H. Tapdancing… We’re *STILL* letting the courts decide these questions?! Federal courts are a branch of the federal government. Isn’t letting them rule on this an inherent conflict of interest?! SMDH

    Yeah, we’re still doing that, for about 215 years.

    I don’t think you get this whole “America” thing. Here’s a link for 30-day access to 7th grade Civics textbook.

    Colonel Klink (Ret) (a01eea)

  43. 42. I get the whole “America” thing better than you think, Klink. In fact, I think that accepting the precedent of Marbury v Madison was the first of many ways (including the Whiskey Rebellion and the Civil War) in which the Federal Government majorly screwed the pooch — if that is, you give a flying frack about actual freedom and our founders’ original intent.

    And the sooner you figure out that the courts are not impartial arbiters in these matters, the sooner you’ll have this “America” thing figured out for yourself.

    Gryph (08c844)

  44. Where’s Burkhalter when we need him!?!?

    Colonel Haiku (ef3fae)

  45. hey, that’s my line coronello,

    narciso (d1f714)

  46. And if you think civics education is worth a single thin red cent in America today, you’re part of the problem.

    Repeal the 16th. Repeal the 17th. THAT will make America great again.

    Gryph (08c844)

  47. @40, dropping trou doesn’t impact the 1st or 5th amendments….not even sure if it hits one of the 10 commandments…if there is no sexual aim.

    The question here is whether a government entity has discriminated based on a journalist’s viewpoint (e.g., Russian collaboration or invasion caravan)…whether the government entity must provide any due process in enforcing rules of etiquette….is the “microphone holding” justification just pretext for viewpoint discrimination. Here, I don’t think so but as Patterico writes, it’s not completely frivolous.

    AJ_Liberty (3c84de)

  48. Toxic Acostalinity!!!

    Colonel Haiku (ef3fae)

  49. job of reporters is to investigate and report news. what they don’t want you to know is news. what they want you to know is propaganda. white house press jackasses are not reporters they are stenographers! woodword and bernstein never attended a press briefing.

    lany (1bdbfd)

  50. so whoever filed the lawsuit, didn’t distinguish between the sherill case, and this one, I don’t see how brandenberg, figures into it, I don’t know the pell case to see the relevance,

    narciso (d1f714)

  51. 48. If they discriminate based on a viewpoint, so what? Presidents have done so before. In fact, there is absolutely no constitutional requirement whatsoever to have press conferences or press gaggles. NONE.

    I differ with our host on my opinion concerning the frivolity of this suit. And I believe that it is on the basis of separation of powers that this suit should be tossed out with prejudice.

    Gryph (08c844)

  52. Ex-Foxer Shine’s ‘shiny object.’ Doctored video, etc., etc. Never go to war w/an outfit that buys ink by the barrel- or gets the word out to the planet on every conceivable communication gadget known to man. They’ll settle this for Christmas.

    Grumpy Trumpy works for us and he’s the ‘showboater,’ not Acosta, spotlighting CNN through his fake news slurs to feed the hate base and generate heat, not light. And if he can’t handle that heat, stay out of the East Room, the kitchen and tweet from bed– or better still, just don’t call on CNN. But that wouldn’t generate attention, would it, Captain, sir.

    DCSCA (797bc0)

  53. That’s perhaps the perfect solution to all this. Disband the White House Press Corps completely. Let them watch the press briefings on TV just like most citizens do. What will the courts do then? Rule that the White House has a constitutional obligation to hold in-person press events?

    Gryph (08c844)

  54. 53. For all I know, you may be right. But it doesn’t matter. Trump has no obligation to hold press briefings at all, let alone no obligation to allow any individual reporter into the White House.

    Gryph (08c844)

  55. 53…you didn’t get teh memo, DCSCA, you were cut loose…

    Colonel Haiku (ef3fae)

  56. “I think that accepting the precedent of Marbury v Madison was the first of many ways in which the Federal Government majorly screwed the pooch”

    Nothing stopped the American people from rejecting, cabining, or clarifying the reach of judicial review through the Article V process….or use the election process to reject and replace the federalists. The problem is that Article III has to mean something….and someone has to be the final arbiter in questions of federal power. If it’s not the Court using neutral principles, then it’s left to naked democracy….and the tyranny of the majority. The Court can certainly be contaminated by partisanship….but this strikes at the core of its legitimacy….and so unlike Congress or the Presidency….it strains to build credible neutral arguments….and in most cases succeeds.

    AJ_Liberty (3c84de)

  57. The crony capitalism gets worse. In addition to offering massive tax incentives to the one of the biggest companies in the history of the world, Amazon has convinced the Commonwealth of Virginia to give it advance notice of any relevant FOIA requests “to allow the Company to seek a protective order or other appropriate remedy.”

    such a filth-dirty little company

    happyfeet (28a91b)

  58. “If they discriminate based on a viewpoint, so what? Presidents have done so before.”

    The government can’t make opportunities/privileges broadly available….like attending a public press conference…. then exclude political opponents because of their speech. Certainly the nature of 1st amendment jurisprudence has changed over time….but few would accept the Alien and Sedition Act these days. We can talk about what the law is or what we could talk about what we think the law ought to be. Which is more productive?

    AJ_Liberty (3c84de)

  59. AJ_Liberty (3c84de) — 11/13/2018 @ 12:29 pm

    That’s an excellent comment AJ_Liberty. The courts are not perfect, but certainly far better than nothing at all.

    Tillman (61f3c8)

  60. I get the whole “America” thing better than you think, Klink. In fact, I think that accepting the precedent of Marbury v Madison was the first of many ways (including the Whiskey Rebellion and the Civil War) in which the Federal Government majorly screwed the pooch — if that is, you give a flying frack about actual freedom and our founders’ original intent.

    And the sooner you figure out that the courts are not impartial arbiters in these matters, the sooner you’ll have this “America” thing figured out for yourself.

    So everything that made America great, for its entire history. The thing that has distinguished it, is wrong. Let’s go to the video, Alexander Hamilton in the Federalist Papers 78:

    “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

    Like those founders? Or are you talking about other founders? Or was it a meme that sounds good, but miscomprehends the Constitution for feelz.

    (including the Whiskey Rebellion and the Civil War)

    You think the South should have won, or the Union should have broken?

    You don’t believe the government should raise taxes, ie Whiskey Rebellion. The government had to borrow money to fight the Revolutionary War, until the Constitution was ratified the US government had no ability to raise money, which requires taxes or the new colonies could have defaulted, ceasing the ability of the country to exist.

    This is all covered in the textbook.

    Colonel Klink (Ret) (ffba1f)

  61. 59. You’re proposing that the law is whatever the courts say it is. There is no law that requires the President to give press passes to anyone on any basis. Not even the Civil Rights act says that. If you want to talk to me about “law” such as it is, then talk to me about getting congress to pass a bill requiring the President to do whatever.

    What you are talking about is legal precedent. Legal precedent != law.

    Gryph (08c844)

  62. this is a thing

    this is big

    happyfeet (28a91b)

  63. When the Obama administration tried to curtail Fox News access, was this decision ever cited? Also, I am curious about the application of this rule to web based organizations. I mean, Gateway Pundit scored a press pass. Does this entitle some similarly flaky leftish website to a pass? Or some alt-right nightmare of a site?

    Gateway Pundit is an “alt-right nightmare of a site”.

    TomM (954e56)

  64. Gryph:

    Legal precedent is law. And that predates the founding. (Ever here of English common law?)

    In any event, you are misstatting the court’s argument. From Patterico’s post above:

    Finally, appellee’s first amendment claim is not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.

    Rather, we are presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press,

    Much of your preceding posts go back to FDR and LBJ news conferences, which you cite as precedent (using that word in your #16 and #35) for kicking Acosta to the curb. Seems odd you give Presidential actions precedental authority, and won’t grant that to the courts.

    Appalled (c9622b)

  65. You’re proposing that the law is whatever the courts say it is. There is no law that requires the President to give press passes to anyone on any basis. Not even the Civil Rights act says that. If you want to talk to me about “law” such as it is, then talk to me about getting congress to pass a bill requiring the President to do whatever.

    What you are talking about is legal precedent. Legal precedent != law.

    No idea what you’re on about, you argue about one thing, then jump to something else entirely. The Civil Rights Act? where would that come in? I, nor the OP, have not said anything like what you seem to be implying, but I honestly can’t tell if there is actually some there there, other than “because muh Trump” or something.

    A law is written, and ratified by Congress, and signed, or vetoed, by the President. The judiciary is only involved in questions where laws may conflict with other laws, or the constitution, application.

    Presidential Records Act, War Powers Act, Budget Act, there are thousands of laws that limit the power of a President.

    It’s almost like there are 3 equal branches of government. Maybe it would be helpful if someone had written some rules, maybe articles, that explain how it works. If only that paper had been saved somewhere, those words would be kind of important. It wouldn’t take a lot, maybe four pages, if only someone would have thought of that. That’s pretty basic, you can watch an FAQ here.

    Colonel Klink (Ret) (e3cb0f)

  66. as opposed to buzzfeed, which besides their storehouse of cat videos, is now fighting slander chargers in London, relying on the dodgy dossier, now the puffington host, despite it’s sharp aggregating skills, is a ‘den of scum and villainy’

    https://legalinsurrection.com/2018/11/florida-races-manual-recount-may-happen-as-nelson-demands-scott-recuse-himself/

    narciso (d1f714)

  67. other than that, how did they like the play:

    https://dailycaller.com/2018/11/13/cnn-lawsuit-white-house-fake-news/

    narciso (d1f714)

  68. “You’re proposing that the law is whatever the courts say it is”

    The alternative is that the law changes based on political whims. Still, Congress can limit or change the appellate jurisdiction of the Supreme Court…taking matters out of its hands….or the people could rise up and change the Constitution through the amendment process.

    The problem in all of this is that the founders did not instantiate how the Supreme Court was supposed to interpret the Constitution to resolve vagueness. So even if I believe that Original Meaning is the proper approach, that implicitly involves a value judgment with no foundation anywhere in Article III. This invites non-originalist methods emphasizing other values. I can’t completely fault the framers because they were charting new territory in all of this…and they did not anticipate the mischief….and “we the people” have tacitly approved of a living and growing Constitution. There was never a majority movement pre- or post-FDR to flip the Constitutional rulings of those eras. At some point….we own it….

    AJ_Liberty (3c84de)

  69. 69. No, the alternative is that the law is whatever congress enacts. You know, like it’s supposed to be?

    I think it’s cute that some people propose that I read civics textbooks. Considering that most of the problems in America these days can be attributed to p1ss-poor civics education and a dumbing-down of America from the highest levels of academia, I trust civics educators about as much as I trust lawyers to rescue us from ourselves. SMDH

    Gryph (08c844)

  70. 66. And the “three equal branches of government” is a myth. Supreme Court justices would never have been given lifetime tenures if the federalists had anticipated the power they would wield today.

    Not to mention the fact that the way some of you talk about the importance of court rulings belie the idea that courts are equal in power to the Executive Branch; if that were really the case, how could the courts mandate that Jim Accost-uh get his press pass back?

    Gryph (08c844)

  71. “The courts are not perfect, but certainly far better than nothing at all.”

    This leftist declaration of an abstract total power vacuum as the null hypothesis is hilarious and predictable. Trust me, society, like life, finds a way, even in places like Brazil.

    “The problem is that Article III has to mean something….and someone has to be the final arbiter in questions of federal power.”

    There is no Final Arbiter, only a judge we haven’t paid off yet.

    “If it’s not the Court using neutral principles, then it’s left to naked democracy….and the tyranny of the majority. The Court can certainly be contaminated by partisanship….but this strikes at the core of its legitimacy.”

    Nah, bureaucratic inertia can keep a LOT of openly corrupted institutions, like the Broward County going on far past their sell-by date.

    “.and so unlike Congress or the Presidency….it strains to build credible neutral arguments….and in most cases succeeds.”

    Which is why we have a Supreme Court of outcomes almost entirely predictable by partisan affiliation and openly fought over as such.

    There is only one ‘credible neutral’ party in between the decisions of Courts and Congress, and that’s the President of the United States. But the thinking of leftists, like the thinking of corporations, seems to shrink back in terror from any hint of relying on human judgment and final human decisions.

    Izzet (00e23d)

  72. “the alternative is that the law is whatever congress enacts”

    And what if there is ambiguity or vagueness….and it is not at all clear how a new situation would be covered or whether the law is constitutional at all. Congress can’t be allowed to unilaterally define the extent of its own powers…because we know where that will lead. The Court is the last piece in place to protect the rights of the minority and of the States. Congress gets a lot of leeway…the presumption of Constitutionality….but it’s not infinite. I think that’s the right balance.

    AJ_Liberty (3c84de)

  73. 73. If there is ambiguity or vagueness, we error on the side of freedom — which we have not done since 1913. I am telling you, if courts get to decide the question of who gets press passes and who doesn’t, the “equal branches” argument goes right out the window.

    And as for what constitutes “the right balance,” I think our founding fathers would beg to differ with you.

    Gryph (08c844)

  74. “Which is why we have a Supreme Court of outcomes almost entirely predictable by partisan affiliation and openly fought over as such.”

    Since 2000 unanimous decisions happen 36% of the Supreme Court cases. 5-4 decisions by comparison make up only 19% of the cases. In 2016, 14% of the cases fell 5-3 or 5-4….and of those many times the alignment was unanticipated….like Gorsuch siding with the liberals in Dimaya….or Roberts in Carpenter. In the age of tweet storms and tantrums, statistics show that the Court tends to be the grownup in the room, often reaching unanimity or a supermajority. That’s why the Court is viewed with so much greater public approval than say Congress. We get stuck on a few high-profile cases and completely lose perspective. Don’t do that. Political alignments in Congress are temporary…is it better to have a check on political excesses or not?

    AJ_Liberty (3c84de)

  75. “I think our founding fathers would beg to differ with you”

    So why did the founders stand for McCulloch v. Maryland…..and why did the people not act to rein in the federal government using the necessary and proper power to establish a federal bank? Yes it was controversial…but this idea of unanimity of thought for that era does not seem to match the reality. Trying to achieve mind melds with Madison and Hamilton as to figure out their thoughts on cell phone data mining only gets one so far. The law moves and adapts to new circumstances. Originalism is an important tool in the judge’s arsenal…but it’s not the only tool….and sometimes the historical evidence is not sufficient to the task at hand. There’s a lot of wisdom in the Constitution but it has its flaws…man made it….not God.

    AJ_Liberty (3c84de)

  76. 76. Wow…The constitution has its flaws, so let’s not follow it. Am I understanding you correctly here? Cause that’s what your argument sure seems like to me.

    Gryph (08c844)

  77. Meridith McGraw
    @meridithmcgraw
    New: President Trump announced he is nominating Neomi Rao, Administrator, Office of Information and Regulatory Affairs, to be Brett Kavanaugh’s replacement on the DC Circuit Court of Appeals (a very powerful position)

    harkin (5789d5)

  78. I don’t get why the WH doesn’t just say, “oh, by the way, we’ve outgrown the White House Press Room and will no longer be holding any pressers there. You’ll be getting schedules for the meetings in the new designated room — unless you are:

    1. Jim Acosta, or
    2. Engaged in litigation with the White House, the Administration, or POTUS.

    You can even use the same passes. Hope to see you all there!”

    cthulhu (e55cd3)

  79. Why not have the WH intern get a Restraining Order keepong Acosta some suitable distance, say 100 yards, away from her. She certainly has sufficient grounds as Acosta pushed her forcefully. That looks clearly like assault as well as battery.

    joepeh (fc6d93)

  80. Why not have the WH intern get a Restraining Order keepong Acosta some suitable distance, say 100 yards, away from her. She certainly has sufficient grounds as Acosta pushed her forcefully. That looks clearly like assault as well as battery.

    A) Because that is an absolute f… lie. It never happened.

    Colonel Klink (Ret) (7960a7)

  81. Let’s go to teh tape… he did a soft judo-chop on the young lady’s arm, it was plain to see.

    Colonel Haiku (2601c0)

  82. Cthulhu! Teh Calabasas Calamari!

    Colonel Haiku (2601c0)

  83. Klink, are you a smug a..hole in real life, or do you merely portray one on the Internet?

    The Great Ape of Madagascar (7654f5)

  84. Klink, are you a smug a..hole in real life, or do you merely portray one on the Internet?

    It’s easy to be smug when you know things. Try it, it might be a nice change.

    Colonel Klink (Ret) (ab0951)

  85. “The constitution has its flaws, so let’s not follow it”

    If that is what you got from my argument you are either comprehension challenged or are arguing from bad faith. Though I am open to other possibilities.

    AJ_Liberty (165d19)

  86. Klink, are you a smug a..hole in real life, or do you merely portray one on the Internet?

    That should be a breach of the posting rules. I wouldn’t even call it a “soft judo-chop” on the unaltered tape. Their arms bumped into each other. Nevertheless, I don’t object to Acosta getting bam-sticked. He was being a dick.

    Paul Montagu (cbbfc4)

  87. Since 2000 unanimous decisions happen 36% of the Supreme Court cases. 5-4 decisions by comparison make up only 19% of the cases. In 2016, 14% of the cases fell 5-3 or 5-4….and of those many times the alignment was unanticipated….like Gorsuch siding with the liberals in Dimaya….or Roberts in Carpenter. In the age of tweet storms and tantrums, statistics show that the Court tends to be the grownup in the room, often reaching unanimity or a supermajority. That’s why the Court is viewed with so much greater public approval than say Congress. We get stuck on a few high-profile cases and completely lose perspective. Don’t do that. Political alignments in Congress are temporary…is it better to have a check on political excesses or not?

    AJ_Liberty (3c84de) — 11/13/2018 @ 3:12 pm

    Those are the same type of silly statistics that have Sinema voting with Trump 60% of the time.

    NJRob (1d7532)

  88. https://www.palmbeachpost.com/news/20181113/judges-recount-extension-sidelined-by-federal-lawsuit

    Judicial supremacy means the law has no meaning. Deadlines are for suckers.

    NJRob (1d7532)

  89. Yes and we saw this back in 2000, and in a smaller scale in 2004 and 2008

    Narciso (9b9220)

  90. Acosta’s behavior was not a close call. He was being a jackass. Trump entirely within his rights.

    Dantes (4d57a4)

  91. CNN wins.

    :-)

    DCSCA (797bc0)


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