Democracy is gratefully about constitutional rights.
Absent official procedures ensuring those rights, a free-wheeling president like Donald Trump can have his authority questioned, his wings clipped.
That’s what happened Friday when Washington, D.C., federal District Judge Timothy J. Kelly ordered the return of CNN reporter Jim Acosta’s revoked White House press pass in the latest collision between the press and the president.
The White House wisely complied with the decision rebuffing Trump’s effort to punish Acosta for his surmising style of asking questions and refusing to sit down and give up the microphone at the president’s recent East Room press conference.
It was only a temporary restraining order. But it will stand until the federal court settles CNN’s lawsuit accusing the president and his staff of violating Acosta’s First and Fifth Amendment rights. And, yes, that could take months.
However momentary, it was a gratifying victory for the news media’s right to access in holding the president and other public officials accountable to the public.
The question now becomes: Will the final outcome also protect that right or does the president have the authority to punish journalists he considers unfriendly, disruptive or rude while covering news at the White House?
The CNN lawsuit contends the First Amendment protects Acosta and other credentialed journalists from presidential whim. Yet that may not entirely be so if you consider Judge Kelly’s reasons for issuing his press pass order.
The judge appeared to agree with the president’s lawyers there’s no inviolable surety that credentialed journalists can access the White House grounds. But he also said once they’re allowed in, they cannot be arbitrarily kicked out.
That reasoning supported his finding that the White House decision to strip Acosta of his press pass failed to meet the Fifth Amendment’s standard of due process. He said the action was “so shrouded in mystery” it was not clear who even made the decision.
Judge Kelly, who was appointed to the federal bench by Trump, urged caution in interpreting his restraining order decision too broadly.
“I want to emphasize the very limited nature of this ruling,” he said. “I have not determined that the First Amendment was violated here.”
Trump’s attorneys argued the White House revoked Acosta’s press pass because of his “showboating” and hostile conduct in covering the White House beat and particularly at the recent press conference when Acosta declined the president's request to sit down.
CNN's citing the lack of protocol governing White House reporters’ deportment and the absence of a fair, transparent process for settling the dispute over Acosta’s press pass registered with the judge.
Trump saw the legal reasoning as instructive. He said his lawyers would write clear rules of conduct for White House journalists that satisfy due process requirements when punitive action is deemed necessary against violators.
“We’re setting up a certain standard, which is what the court is requesting,” said Trump. “People have to behave … you have to act with respect when you’re at the White House.”
Respect, to be effective, is a two-way standard.
Trump has described Acosta as a "rude, terrible person." He also delights in often calling journalists and news organizations he considers unfriendly “enemies of the people” and purveyors of “fake news.”
That’s hardly respectful language. It is spiteful denigration of an American institution the nation’s founders saw as necessary to hold government’s feet to the fire in our democratic society.