Mark Levin Has Some Thoughts About CNN's Lawsuit Against the White House

Constitutional attorney and conservative radio host Mark Levin is weighing in on CNN's lawsuit against the White House. CNN filed the lawsuit today on behalf of correspondent Jim Acosta. His press credentials were pulled last week after he got into a physical altercation with a White House intern over a microphone.

"I just read CNN's lawsuit against the administration over Jim Acosta. It's a very weak case, but if they get before an Obama or Clinton district judge, who knows. CNN hired Ted Olson's firm, and he has signed onto the lawsuit. Olson was hired for a few reasons: 1. As a former Reagan official and lawyer for Bush in Bush-Gore, CNN hopes to make the PR case that this a bipartisan matter; 2. CNN hopes to make the PR case that it is upholding the Constitution against a rogue administration; and, 3. CNN has employed a top Supreme Court litigator," Levin posted to his Facebook page Monday.

"Nonetheless, it is a ridiculous suit. CNN still has reporters at the White House and in the presidential press conferences; Acosta does not have a constitutional right to be physically present in the press room, anymore than the scores of media outlets that do not; Acosta can watch the press conference from outside the White House grounds as they are televised; the president cannot be compelled by any court to actually call on any particular reporter during a press conference," he continued. "Acosta does not have a constitutional right to disrupt the press conference with his various antics anymore than any other reporter; and, a president is not constitutionally compelled to hold a presidential press conference. The courts should stay out of this on separation of powers grounds, among other things. No one is preventing Acosta from reporting or CNN from broadcasting."

CNN argues on the lawsuit the First Amendment rights of their reporter are being violated by the White House and Secret Service. Press Secretary Sarah Sanders isn't buying it.

“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," Sanders said in a statement Tuesday. "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," she continued.

"If I were President Trump and the judge ruled against me, then I would stop hold press briefings all together."

Well, that would work, ironically enough.

CNN's case is based almost entirely on three things, a District of Columbia Circuit Court of Appeals case from 1977 arising out of the denial of a press pass in 1972 to Robert Sherril a correspondent for "The Nation". See Sherrill v. Knight, a ridiculous assertion of fact that Trump based Acosta's banishment on a doctored video of the shoving incident, and a hidden desire by Trump to be rid of the meddlesome journalist Acosta, who was only doing his job by asking probing questions, blah, blah, blah. See [CNN's] Memorandum of Points and Authorities in Support of a Temporary Injunction.

Sherrill holds that a president has no duty to speak to journalists, to speak to all if he speaks to one, or to call on anyone in particular a press conference, but it did hold that in setting up a press room in the White House that it had some duties under the 1st & 5th Amendments to allow accredited journalists access: " ... 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.". Or, in other words, no Press Room, no problem.

What makes the CNN case weak, to the point of frivolous, aside from the bizarre doctored video allegation and the even more bizarre assertion that Acosta is an actual functioning journalist, is that the Sherrill court goes on to say "... "We do agree with appellants that the governmental interest here does not lend itself to detailed articulation of narrow and specific standards or precise identification of all the factors which may be taken into account in applying this standard. It is enough that the Secret Service be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or his immediate family21 so serious as to justify his exclusion. See A Quaker Action Group v. Morton, 170 U.S.App.D.C. 124, 516 F.2d 717 (1975). This standard is sufficiently circumspect so as to allow the Secret Service, exercising expert judgment which frequently must be subjective in nature, considerable leeway in denying press passes for security reasons....".

Sherrill, like Acosta, apparently had a problem whenever he got an answer not to his liking, having been charged twice in the past with assault during the course of an interview. This was the reason the Secret Service suspended his press credentials. The Sherrill Court had no complaint with that decision, or the right of the Secret Service to make it: "... It is enough that the Secret Service be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or his immediate family so serious as to justify his exclusion.".

The Court even went further by holding that the Secret Service's judgment on matters involving the security of the president, and by extension the White House, was not subject to review by the courts. It only held that there be some type of standard for exclusion and that Sherrill was entitled to be told the reason for his exclusion, and offered an opportunity to reply.

Acosta, and in fact the entire nation, was shown the reason Acosta's credentials were revoked, and CNN has not been shy in stating it rebuttal, which is all Sherrill requires of Trump.

However, as they say in those commercials, "But wait, there's more!", in this case the "more" being more fun. Now that CNN has filed its complaint, the case will turn on the facts. Those are, namely, (1) was the video doctored, as CNN alleges, and (2) is Acosta a real journalist and does he act as one at White House press conferences. Now will follow discovery, after which CNN, the plaintiff, will have the burden of proving its case, or be .... wait for it .... adjudicated Fake News! Is it not absolutely uncanny how Trump maneuvers his adversaries into losing positions -- Elizabeth Warren is just one example -- seemingly without any effort.

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