The President MUST Appeal The Acosta Ruling

Judge Timothy Kelly, a Trump appointee, verbally ordered the President of the United States to reinstate CNN Reporter Jim Acosta’s hard pass to access the White House on Friday.  The judge, who sits in the United States District Court for the District of Columbia, has not posted his ruling yet, forcing us, at least temporarily, to rely on press reports for details.

Predictably, CNN has called the ruling a huge victory for the First Amendment.  However, according to numerous press reports, Judge Kelly took issue, not with any alleged affronts upon the First Amendment, but rather, the process used to revoke Acosta’s hard pass.  According to one news outlet, the judge said that Sarah Huckabee Sander’s “belated efforts at [answering Acosta’s concerns] were hardly sufficient to satisfy due process.”  Additionally, according to Breitbart, the judge found that in creating press conferences, the President created a public forum to which limited due process rights attach.

I disagree.  Contrary to Judge Kelly’s view, the White House press conference is an internal working of the executive branch done solely for a public relations and communications purpose and at the pleasure of the President of the United States. As such, and as reported previously by The Federalist Pageswhen the Court interferes with how the President conducts his press conferences, it is essentially intruding into the rightful powers of the President of the United States, as Chief Executive, in conducting the internal dealings of the executive branch.

Seen from this angle, which is the dominant issue in this matter, it becomes clear that the President must zealously pursue this case for the sake of the preservation of the autonomy of the executive branch.

Let’s be clear.  There is no finality to Friday’s ruling.  

The judge’s order was the implementation of a temporary restraining order against the President until such time that the case actually goes to trial.  Strategically, the President now has a couple of opportunities available to him.  First, he can let the case play out at the District Court, and if the judge should rule against him at the trial, he can appeal.  Alternatively, the President may appeal the temporary injunction as a matter of law, right now.  Either way, it is imperative that the President take the case to the next level. If he does so, it is likely that a higher court would not accept the invitation for the judiciary to intrude into the inner workings of another branch of government.  If argued as a matter of separation of powers and the comity between the branches of government, it is likely the district court’s position will not be upheld.  If it does, I am equally confident the Supreme Court will take this case because of the constitutional implications it carries to the inner workings of government, and will reverse it.

Make no mistake, although this case is being painted with a brush held by Acosta and the media, it actually represents, yet another small but significant intrusion onto the proper balance of powers; an intrusion with which the Framers, except for John Marshall, would be in total disagreement.

EDITORS NOTE: This column originally appeared in The Federalist Pages. The featured photo is by rawpixel on Unsplash.

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