A federal judge in Washington heard nearly two hours of arguments Tuesday about whether to restore the press pass taken from Playboy White House correspondent Brian Karem following a high-profile altercation with former White House aide Seb Gorka in the Rose Garden last month.
Karem is suing President Donald Trump and press secretary Stephanie Grisham in a bid to overturn the 30-day suspension of Karem’s press pass the White House imposed on the grounds that he insulted guests during a social media summit and appeared to seek to instigate a fight with Gorka as the two men traded barbs in what quickly became a viral video moment.
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U.S. District Court Judge Rudolph Contreras sounded disapproving of Karem’s conduct and disbelieving of the journalist’s claim that he was simply issuing an invitation to chat when he said to Gorka: “Come on over here and talk to me, brother, or we can go outside and have a long conversation.”
Contreras called “less than credible” Karem’s claim the remark was an invitation to appear on his podcast.
However, the judge also expressed concern that the White House was using unduly “murky” standards for “professionalism” and “decorum” that might have violated Karem’s constitutional rights.
“As this event proved, the nature of journalism has changed quite a bit,” deadpanned Contreras, an appointee of President Barack Obama. “I’m trying to figure out where the lines are,” the judge added.
Contreras also asked several skeptical questions about the process the White House used and about Grisham’s decision to rely on an account Karem never saw from a Secret Service agent who stepped in to defuse the situation.
An attorney for Karem, Ted Boutrous, said the decision to suspend Karem’s pass is part of a broader campaign by Trump to delegitimize the press.
“This case raises really important issues that go far beyond this case,” Boutrous said, adding that the action against Karem is “part of a campaign President Trump has been very open about that he’s waging on ‘fake news’ and the ‘lamestream media.”
Boutrous complained about Karem’s lack of access to the Service Service agent’s account and said that Grisham acted without any sworn testimony from anyone.
But Contreras noted there are multiple videos of the showdown from various angles. “This has to be the most well documented disputed event that I’ve ever seen,” the judge said. “Even bank robbery videos are not that clear.”
Near the outset of the hearing, Contreras referred to another judge’s ruling last November restoring the press pass of CNN White House reporter Jim Acosta, after he was accused of tussling with a press aide at a news conference.
Contreras said he agreed with the judge in that case that pulling a reporter’s pass does constitute “irreparable harm” to the journalist’s First Amendment rights. However, Contreras said it was “a closer call” on whether Karem would actually win his suit if he proceeded.
“It’s clear that the White House got better lawyers between the Acosta [case] and this one. They put together a much better record,” the judge said.
Boutrous suggested that Grisham’s handling of the matter wouldn’t hold up to scrutiny and he seemed to intimate that her 13-page letter suspending Karem’s pass was heavily lawyered.
“I’d love to depose her on her analysis. I’d love to have her under oath,” Bourtrous said.
While some of the events surrounding the Karem-Gorka exchange are in dispute, Contreras asked Karem’s lawyer what the White House could do if a journalist did “something unbelievably inappropriate [like if he] drops his pants and moons the press secretary.”
Boutrous appeared to gesture with his hands as if pulling someone’s pants up and said the White House could intervene in the moment, but couldn’t punish the violator going forward without formal standards and a process involving a decision by someone more neutral than the White House press secretary.
“The line is supposed to be clear in advance,” the attorney said.
Contreras did not issue an immediate ruling on Karem but said he plans to make a decision Friday or Tuesday on whether to issue a preliminary injunction ordering the White House to restore Karem’s so-called hard pass.
Any such injunction would only last while the litigation goes forward, but in the Acosta case the White House backed down after losing the initial ruling.
Contreras did order the government to provide him, under seal, a copy of any written statement the Secret Service agents prepared.
At one point, Boutrous insisted that Karem had tried to deal with a difficult situation “as best he could.”
That prompted an interruption from Contreras. “I’m not sure I’d go so far to say he dealt with it as best he could.”
Justice Department attorney James Burnham emphasized that Karem has not apologized for his conduct. “If you granted relief to Mr. Karem, it will be perceived by Mr. Karem as an endorsement of his behavior,” Burnham said. “I just think that the doubling down is an important part of the analysis.”
In one sign of high-level attention to the case, one very senior Justice Department official was in the courtroom gallery for the arguments, Assistant Attorney General for the Civil Division Jody Hunt.
Amicus briefs supporting Karem’s position were submitted to the court by the White House Correspondents Association, the Reporters Committee for Freedom of the Press and the PEN America Center.