Friday, November 16, 2018


CNN WINS ROUND ONE BASED ON QUESTION OF DUE PROCESS, AND NOT THE FIRST AMENDMENT

The trial judge is doing exactly what the Supreme Court would have ordered in a remand.  The lawyers for both sides have until Tuesday to further develop the case on Due Process.  The court is forcing the parties to further develop the record.  Trump's lawyers can take this to the Supreme Court immediately, but Tuesday's hearing will be done with before the Supreme Court could  rule.  It is almost impossible to get the Supreme Court to hear an undeveloped case, especially when the trial judge is pushing fast for a more fully developed record.

"The judge told attorneys for the Trump administration that the White House has to establish standardized rules to justify taking away a pass to cover the White House and wants to hear from both sides again Tuesday.

This was also granted on a limited basis and was not on First Amendment ground, but the Fifth Amendment's right to due process. The judge said the White House denied Acosta's right to due process under the law."


The judge is being cautious which is very good.  The White House has a procedure for getting White House credentials.  But I have briefed this many times.  Court cases are a dime a dozen which say just because an entity has a procedure to obtain something, does not mean what you are obtaining is a Right.  This is the rub in the case.  If access to the White House as a journalist is not a right, then the procedures outlined for gaining access do not implicate Due Process.

Many judges have written many opinions stating a mere procedure set up by the government to obtain something does not attach to Due Process unless that something is a right.  If the benefit is discretionary, which access to the White House would be, then Due Process does not attach.

But I will say having followed this issue for years and continuing to follow this issue, the courts struggle with it.  It is like Texas weather, if you do not like it, wait a minute and it will change.

The central question for the Supreme Court is, did Acosta have a reasonable expectation he had a right to access to the White House.  I cannot see the Supreme Court finding any reporter has a reasonable expectation of access to the White House. 

I like this trial judge because he is proceeding with caution and forcing the parties to better develop the record and the law for preparation for the Supreme Court. 

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