Somewhere in the bowels of the White House an underpaid staff attorney is toiling away for an administration that struggles daily to produce the same product as human bowels do.
His or her job is currently to come up with a complete set of arbitrary rules to govern press coverage of the president that will include sanctions against reporters should they stray from these rules and give the president a process by which he can remove reporters and yank press credentials when he so desires.
This, of course, comes after CNN’s Jim Acosta won the first round of a court battle with the president on behalf of all reporters – after he got his press credentials yanked because of actions he took in a recent news conference.
United States District Court Judge Timothy Kelly in his ruling said that barring Acosta, “is still so shrouded in mystery that the government could not tell me,” who made the decision to toss Acosta. As for why, Kelly remained skeptical of initial dubious claims from the White House that Acosta had assaulted an intern. Kelly said in legal terms those claims were nothing more than bad b.s.
The court case continues, but Kelly’s decision had more to do with due process, a Fifth Amendment claim, than a First Amendment claim of violating Acosta’s free speech.
Ahhh. There’s the rub.
“People have to behave,” Trump later said in an Oval Office interaction with reporters. “If they don’t listen to the rules and regulations, we’ll end up back in court and we will win.”
Later press secretary Sarah Huckabee Sanders issued a statement saying “…the court made clear that there is no absolute First Amendment right to access the White House … we will also further develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.”
By decorum, Sanders is speaking of the press — certainly not the president who has shown absolutely no decorum at any point in time during his tenure.
As for rules, there are currently no rules and regulations, so that’s why somewhere in the White House or more likely the basement of the Executive Office Building someone at this moment is constructing them. Never mind the country has survived just fine without any ridiculous rules governing Free Speech or press decorum since the beginning of the Republic for which it stands one nation indivisible with liberty and justice for all. In the past the people have held its politicians accountable to them. What Trump wants is to make the people accountable to the politicians — contrary to the very founding of our government.
The temporary victory for the Free Press therefore is going to be short-lived if the president has his way — and he just might get away with it and further hamstring the access to the administration.
The president will draft a set of rules and will arbitrarily decide what is or is not rude. Using the nebulous definition of “decorum” these rules may or may not limit the number of questions reporters are allowed to ask, how they may address the president and his minions, who may or may not have access to press passes, who can or cannot cover the West Wing, as well as what is appropriate manner of dress, speech, conduct and other attitudes the president deems inappropriate.
Since Judge Kelly did not directly address the First Amendment issue of free speech or access in his ruling in favor of CNN and Acosta, the rules the president comes up with will remain unchallenged at this point. This is problematic.
What the president will first address and what the Judge did rule on, is establishing a process by which the White House can punish us.
If a method can be developed to punish reporters that passes the 5th Amendment muster, then we will face increasing scrutiny and additional reporters will be at risk of being sanctioned.
This will quickly lead to a very untenable reporting situation in the White House that New York Times chief White House Correspondent Peter Baker said is akin to having a “sword hanging over our heads.”
Any method, I believe, developed to punish those who are perceived to get out of line will include minor and major punishments, a variety of options to issue suspensions of press credentials for different lengths of time including the “death sentence” of a lifetime loss of said credentials.
By establishing multiple levels of punishment, the administration will use a tried and true method of trying to modify behavior to their ends.
Mike McCurry, Clinton’s former spokesman says the WHCA should be the body which oversees the issuance of White House press credentials, and I could see the WHCA being pressed into service working with the administration to punish reporters, though Olivier Knox, the president of the WHCA said no one from the administration has yet approached him on rules of behavior.
Any attempt to do this should be discouraged. The WHCA would hopefully resist being co-opted by government to define rude behavior or punish reporters. That would be horrible and incredibly divisive for the press corps – of course the president would absolutely love that.
I could also see the White House Press Office being weaponized to punish reporters. This, the far more likely scenario under the current administration, would further alienate the press and the White House and would be disastrous not only for reporters but for the country.
An independent council or perhaps a council consisting of reporters and WH staffers could also be established and would be filled with political intrigue and drama.
The White House could also merely make up a bunch of rules and arbitrarily decide how to punish us or Trump could merely stride across the land shouting “Off with his head.”
Or they could just drop this issue — but they won’t.
The next challenge from a reporter will thus potentially have to deal with the same two issues the Acosta case did: due process and the First Amendment.
Should the process be sound, reporters could lose that round and the result we got with Acosta would not duplicate itself.
That would then advance the case into the realm of the First Amendment. Here things are not so cut and dried. Judge Kelly hinted at that in his ruling and the president seized upon it in deciding to pursue a set of bylaws by which the people would be allowed into the people’s house to cover the activities of an elected president in the world’s greatest democracy.
In a best case scenario we would get a ruling that shoots down any process by which reporters can be ejected due to perceived character flaws or vocalizations and keep the current situation where only those who are legitimate security risks are denied access to the White House.
After all it isn’t a palace, and this isn’t the Soviet Union.
We could also end up with a court decision that leaves a process in place (that the White House is surely drafting) to remove reporters, but shoots down the rules governing reporters as a violation of the First Amendment.
But we could also end up with a ruling that backs the executive branch of government on both the First and Fifth Amendments and that my friends would sound the end of our Democracy.
At the end of the day, CNN won the battle against the president, but this president declared war on the free press a long time ago.
And in wars, you sometimes lose battles without losing the war.
But also make no mistake who declared this war: The President. And make no mistake upon whom he has declared war: The American People.