A shorter version of this sentiment appeared on November 29. 2018 as “CNN and Acosta Will Have a Lot to Answer For Later” in a letter to the Wall Street Journal.

The case brought by CNN against the White House over suspension of the “Hard Pass of correspondent Jim Acosta will likely not be decided tomorrow on some great First Amendment principle but on administrative procedure grounds. In a similar situation 40 years ago, Sherrill vs. Knight, 569 F.2d 124 (D.C. Cir. 1977)  the D.C. Circuit Court ruled that once the government sets up a program of press admission to the White House, procedures must be followed to deny access. Under the Federal Administrative Procedure Act,  there would need to be standards specified and to revoke a pass the White House would have to give notice and an opportunity to be heard on whether the rules were violated.

It seems very likely that the judge here will send the case back to the White House for a Notice and some kind of opportunity for Acosta to defend himself.

The press has no Constitutional right to be located in the White House and their presence has been expanded over the years only as Presidents saw it as a useful to them to communicate to the public. Theodore Roosevelt met with favored reporters and allowed those hanging around outside to come in to the West Wing lobby to wait for news. Woodrow Wilson had some press conferences and Herbert Hoover set up a press room. Franklin D. Roosevelt expanded the practice, having large numbers of reporters into his office frequently where he answered of evaded questions.

As the conferences grew larger, Harry Truman moved them to the Executive Office Building. Dwight Eisenhower conducted the first filmed press conferences, but John F. Kennedy was the first to conduct them on live television.

An indoor pool was constructed in the colonnade to the West Wing which FDR and JFK used for physical therapy and JFK for more, uh, recreational purposes. Richard M. Nixon had the pool covered over and a large press facility built including cubicles and broadcast booths for the major news organizations and a briefing room with 49 seats, also assigned to the major news organizations. These 49 have been changed over the years with the likes of CNN and Fox news replacing old print outlets.

Acosta is known by his colleagues to be something of a camera hog. His questions at Presidential Press Conferences and the Daily Briefing by Press Secretary Sarah Sanders are often arguments and expressions of his opinion with sort of a question tacked on. He is not alone among the #nevertrumpers in the press corps but perhaps the most extreme example.

There are many easier ways to deal with the likes of Acosta. The Trump administration would be well within its rights to shut the entire operation down, but singling out reporters is a trickier business, as I note above. Trump could simply ignore Acosta but one gets the feeling he relishes the combat – until he doesn’t think it’s going his way.

The administration could promulgate rules, prohibiting yelling and permitting only the raising of hands for recognition. Then there would be a basis for suspending an offending reporter.

Another remedy would be to stop filming the President’s Press Conferences to eliminate showboating by the reporters. That, however, would also deny the President his own desire to showboat. It might be beneficial at least to stop televising the Press Secretary’s briefings.

President Trump might consider that he can get on television anytime he wants without the aggravation of a Press Conference just by stepping into the driveway. Reporters and cameras appear and he can speak as long or briefly as he wants.