A federal appeals court has endorsed a judge’s order restoring a White House press pass to a reporter who wound up in a verbal altercation with one of President Donald Trump’s most loyal and outspoken supporters in the Rose Garden last year.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled Friday that the White House violated the constitutional due process rights of Playboy reporter Brian Karem by suspending his pass for 30 days after the heated exchange with talk show host and former White House aide Sebastian Gorka at the end of a White House social media summit in July.
Judge David Tatel said Karem was never given advance notice that he could lose his pass for arguing with a guest, so it was not legally permissible to pull his credential on that basis. Justice Department attorneys representing the White House said requiring such notice would leave the White House unable to police disruptive behavior by journalists, but the appeals court said that concern was misplaced and authorities are free to act in extreme circumstances.
“Raising the specter of the absurd, the White House argues that it cannot be the case that ‘the Press Secretary would be powerless to take action even were a reporter to “moon” the President, shout racial epithets at a foreign dignitary, or sexually harass another member of the press corps,’” Tatel wrote. “The White House can rest assured that principles of due process do not limit its authority to maintain order and decorum at White House events by, for example, ordering the immediate removal of rogue, mooning journalists.”
Justice Department declined to comment and the White House did not immediately respond to requests for comment on the ruling. The White House could ask the full bench of the appeals court to hear the case or seek review from the Supreme Court.
Karem and Gorka exchanged taunts in the Rose Garden after an event in which Trump promoted his efforts to bypass the traditional press corps by harnessing the power of his allies with large social media followings.
As the event concluded, some invitees taunted members of the media who were on hand. Karem responded loudly: “This is a group of people who are eager for demonic possession.” Gorka then sidled up to Karem and shouted: “You’re not a journalist — you’re a punk!”Karem eventually invited Gorka to go “outside,” something the White House said amounted to proposing a fight.
Karem’s lawyer, Ted Boutrous, argued Karem’s conduct was not significantly out of line with the history of freewheeling, sometimes fiery interactions between journalists and the president at White House events.
Tatel appeared to agree, concluding that barring Karem over the showdown with Gorka went too far.
“The White House cannot defend the thirty-day suspension here on the ground that some other, egregious conduct might justify the same sanction. And even if the White House could impose that sanction for such egregious conduct consistent with due process, Karem’s behavior as reflected in the preliminary injunction record fell below that threshold. Notions of professionalism are, after all, context-dependent,” added Tatel, an appointee of President Bill Clinton.
Boutrous welcomed the ruling, especially as journalists have recently been targeted by police amid the nationwide protests sparked by George Floyd’s death in an encounter with Minneapolis police.
“We are very grateful for the powerful opinion from the D.C. Circuit and are proud to stand with Brian Karem against an administration that regularly demeans and seeks to chill freedom of the press,” Boutrous said. “Particularly today where journalists are facing attacks from all directions across the country, this case should let journalists know that the courts will not tolerate these unconstitutional actions.”
The two other judges on the appeals court panel were Sri Srinivasan and Nina Pillard. Both are appointees of President Barack Obama.
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