• by Wendy Davis  @wendyndavis, August 19, 2020

The Trump administration on Wednesday asked federal appellate court to reconsider a recent order requiring the White House press secretary to restore journalist Brian Karem's press credentials.

That earlier ruling “will impede the White House’s control over journalists’ behavior in the President’s workplace and its ability to maintain basic standards of decorum and professionalism,” attorneys with the U.S. Department of Justice write in a motion asking the entire circuit to re-hear the case. 

The dispute dates to President Trump's July 2019 “social media summit,” which involved convening right-wing activists to discuss alleged bias by tech companies.

Toward the end of the event, Trump gave a prepared speech at the Rose Garden. Karem was among the journalists present in a cordoned press area for that speech. Afterwards, he and former Trump advisor Sebastian Gorka publicly argued.

Three weeks later, former Press Secretary Stephanie Grisham told Karem his “hard” press pass -- which allowed him relatively quick entree to the White House -- would be suspended for 30 days due to his “unprofessional” conduct.

Karem, a correspondent for Playboy and analyst on CNN, then sought a court order restoring his credentials. Among other arguments, he said the revocation violated his right to due process of law, because he didn't have fair notice that his press pass could be revoked for one month due to allegedly unprofessional conduct.

A trial judge sided with Karem and issued an injunction requiring the restoration of his credentials.

The White House appealed to the D.C. Circuit, which upheld the trial judge's ruling. 

A three-judge panel of that court ruled in June that Karem's due process claim appears likely to succeed because the White House failed to give him adequate notice that he could lose access for 30 days -- described by the judges as “an eon in today’s news business” -- due to “purportedly unprofessional conduct at the non-press-conference event.”

Those judges drew on a key decision issued by the D.C. Circuit in 1977, in a case involving journalist Robert Sherrill. In that matter, the appellate court said government officials must afford journalists due process of law when making decisions about press credentials, given that those decisions implicate the First Amendment.

The Justice Department is now asking the entire circuit court to reverse that 43 year old decision.

“The purported liberty interest recognized in that decision intrudes substantially on the core White House prerogative of controlling access to the workplace of the President,” government attorneys write in their new papers.

The government alternatively argues that the decision to suspend Karem's press credentials didn't deprive him of due process.

“A a White House Press Corps member surely does not need it spelled out for him that privileged access to the White House depends on behaving with decorum while there,” the government writes. “The panel’s holding that Mr. Karem cannot even be temporarily barred from the White House for his unprofessional behavior because he lacked explicit notice of that possible sanction ... not only blinks that reality, but invites judicial micromanaging of the White House Press Secretary as she discharges her duty to uphold decorum and order by the press at White House events.”

First Amendment attorney Ted Boutrous, who represents Karem, says the government's request for rehearing is "meritless."

“The unanimous panel applied well-settled law in rejecting the suspension as unconstitutional,” he tells MediaPost. “The Supreme Court has held time and again that the Constitution requires fair notice before a punishment can be imposed, and the court correctly held that the actions of the President and the press secretary in this case blatantly violated that basic principle.”