Update: U.S. District Judge Timothy Kelly said Thursday he plans to issue an oral ruling Friday morning at 10 a.m. 

A federal judge in Washington did not immediately rule Wednesday on CNN’s demand that the Trump administration reinstate the press credentials of a news reporter, Jim Acosta, whose lawyers accused the White House of retaliating against him for critical coverage and verbal skirmishes with the president.

U.S. District Judge Timothy Kelly, a former U.S. Senate lawyer whom Trump appointed to the federal trial bench last year, heard arguments for about two hours in a packed courtroom. Kelly said he planned to issue a ruling by Thursday afternoon.

CNN, represented by Gibson, Dunn & Crutcher partner Theodore Boutrous, pointed to instances where Trump publicly criticized Acosta and CNN as “fake news.” Kelly appeared to question whether the decision to revoke Acosta’s credentials was driven by the content of his coverage—raising First Amendment issues—or instead by his conduct at a press conference on Nov. 7, which the White House cited as the reason.

“Why now,” after previously criticizing Acosta’s coverage, was the White House revoking Acosta’s press pass? Kelly asked Boutrous.

Boutrous recalled that Trump described Acosta as “rude” for refusing to hand over a microphone and yield to other reporters at last week’s press conference. “‘Rudeness’ is really a codeword for ‘I don’t like you being an aggressive reporter,’” said Boutrous, who was joined in court by a Gibson Dunn team including Theodore Olson, a partner at the firm and former solicitor general under the George W. Bush administration.

Justice Department attorney James Burnham defended the White House’s decision, saying the move was based on Acosta’s conduct and not content. He told Kelly: “A single journalist’s attempt to monopolize a press conference is not a viewpoint.” Burnham said CNN has about 50 other employees with so-called “hard passes” to access the White House.

“Grandstanding and disrupting a press conference is just not a viewpoint,” Burnham said.

In court papers leading up to the hearing, CNN argued the revocation of Acosta’s press credentials violated the First Amendment. They are seeking a temporary restraining order and preliminary injunction. Boutrous argued Wednesday in court for CNN.

“This severe and unprecedented punishment is the culmination of years of hostility by President Trump against CNN and Acosta based on the contents of their reporting—an unabashed attempt to censor the press and exclude reporters from the White House who challenge and dispute the President’s point of view,” CNN’s lawyers wrote in their complaint, filed Tuesday.

The White House, in rescinding Acosta’s credentials, pointed to a video from a recent White House press conference showing Acosta resist an intern’s efforts to remove the microphone the reporter was holding as he asked a question to Trump. CNN has disputed that Acosta had placed his hands on the White House official.

The Justice Department on Wednesday, in a new court filing hours before the hearing, defended the revocation of Acosta’s credentials, contending the president has “broad discretion” in granting access to the White House.

“No journalist has a First Amendment right to enter the White House and the president need not survive First Amendment scrutiny whenever he exercises his discretion to deny an individual journalist one of the many hundreds of passes granting on-demand access to the White House complex,” the Justice Department said.

The lawsuit was backed Wednesday by several news organizations, including Fox News, The New York Times and The Washington Post.

“It is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons. Our news organizations support the fundamental constitutional right to question this President, or any President,” the news organizations said in a statement released by Ballard Spahr LLP.

 

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