Case Document 23-1 Filed 11/19/18 Page 1 of 20 EXHIBIT 57 Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 2 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CABLE NEWS NETWORK, INC., et al., CA No. 1:18-cv-02610-TJK Plaintiffs, v. Washington, D.C. Friday, November 16, 2018 10:00 a.m. DONALD J. TRUMP, et al., Defendants. TRANSCRIPT OF MOTION HEARING HELD BEFORE THE HONORABLE TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: Theodore J. Boutrous, Jr., Esq. Joshua S. Lipshutz, Esq. Anne M. Champion, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7804 For the Defendants: James M. Burnham, Esq. Michael H. Baer, Esq. Eric R. Womack, Esq. Joseph E. Borson, Esq. U.S. DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 353-5049 Court Reporter: Timothy R. Miller, RPR, CRR, NJ-CCR Official Court Reporter U.S. Courthouse, Room 6722 333 Constitution Avenue, NW Washington, DC 20001 (202) 354-3111 Proceedings recorded by machine shorthand; transcript produced by computer -aided transcription. Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 3 of 20 PROCEEDINGS 1 2 2 THE DEPUTY CLERK: Your Honor, this is civil 3 matter 18-2610, Cable News Network, Incorporated, et al., v. 4 Donald J. Trump, et al. 5 6 7 8 9 10 11 12 13 Will counsel please approach the lectern and state your appearance for the record. MR. BOUTROUS: Good morning, Your Honor. Theodore Boutrous for Plaintiffs CNN and Jim Acosta. THE COURT: Good morning, sir. MS. CHAMPION: Good morning, Your Honor. Anne Champion from Gibson Dunn for Plaintiffs CNN and Jim Acosta. MR. LIPSHUTZ: Good morning, Your Honor. Joshua Lipshutz from Gibson Dunn for Plaintiffs CNN and Jim Acosta. 14 THE COURT: 15 MR. BURNHAM: Good morning. Good morning, Your Honor. James 16 Burnham here on behalf of the defendants, along with Michael 17 Baer, Eric Womack and Joseph Borson. All right. Good morning to you all. 18 THE COURT: 19 We are here for an oral ruling on the plaintiffs' 20 21 22 23 application for a temporary restraining order. And I'd better get some water right away here. (Brief pause.) On November 7th, 2018, President Trump held a news Soon after it started, he 24 conference at the White House. 25 called on Plaintiff Acosta, a reporter for CNN, to take a Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 4 of 20 3 1 question from him. 2 about the caravan of migrants heading to the U.S.-Mexican 3 border, the President indicated that he wanted to move on to 4 call on another reporter but Mr. Acosta would not be seated 5 and continued trying to ask his question and then he would 6 not give up the microphone, even when approached by an 7 intern employed by the White House Press Office who 8 attempted to retrieve it from him. 9 several comments toward Mr. Acosta while this happened, After Mr. Acosta asked several questions The President made 10 including, You are a rude, terrible person, and, When you 11 report fake news which CNN does a lot, you are an enemy of 12 the people. 13 microphone. 14 Eventually, Mr. Acosta did relinquish the That night, his Secret -- the Secret Service asked 15 Mr. Acosta to relinquish his hard pass, his credential that 16 allows him access to the White House press facilities. 17 same evening, the White House Press Secretary, Sarah 18 Sanders, posted a video on Twitter purporting to show the 19 exchange between Mr. Acosta, the intern and the President. 20 In a tweet, Ms. Sanders cited the conduct in the video as 21 the reason that Mr. Acosta's hard pass had been revoked. 22 a tweet, she characterized Mr. Acosta as placing her hand -- 23 his hands on the intern and she also asserted that Mr. 24 Acosta had been disrespectful to his colleagues to not allow 25 them to -- the opportunity to answer a question. That In Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 5 of 20 4 The next day, on November 8th, CNN sent a letter 1 2 to the White House requesting that Ms. -- the reporter's 3 credentials be reinstated immediately. 4 White House simply did not like the content of the questions 5 posed to the President and threatened to take legal action 6 if the revocation was not reversed. CNN alleged that the The next day, on November 9th, the President 7 8 suggested that other reporters might have their credentials 9 revoked and that reporters must treat the White House with 10 respect and treat the presidency with respect and he also 11 conceded that Mr. Acosta's -- but he also conceded that Mr. 12 Acosta's conduct toward the Press Office intern had not been 13 overly horrible. Then the long holiday weekend intervened. 14 And on 15 the morning of Tuesday, November 13th, CNN and Mr. Acosta 16 filed this lawsuit and moved for a temporary restraining 17 order. 18 That morning, after -- the same morning, after the 19 suit was filed, Ms. Sanders issued a written statement 20 setting forth reasons for the revocation of Ms. -- Mr. 21 Acosta's hard pass. 22 has filed a complaint challenging the suspension of Jim 23 Acosta's hard pass. 24 CNN and we will vigorously defend against this lawsuit. 25 CNN, who has nearly 50 additional hard pass holders, and Mr. It read: We have been advised that CNN This is just more grandstanding from Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 6 of 20 5 1 Acosta is no more or less special than any other media 2 outlet or reporter with respect to the First Amendment. 3 After Mr. Acosta asked the President two questions, each of 4 which the President answered, he physically refused to 5 surrender a White House microphone to an intern so that 6 other reporters might ask their questions. 7 first time this reporter had -- has inappropriately refused 8 to yield to other reporters. 9 orderly and fair press conference when a reporter acts this This was not the The White House cannot run an 10 way which is neither appropriate nor professional. 11 First Amendment is not served when a single reporter, of 12 more than 150 present, attempts to monopolize the floor. 13 there is no check on this type of behavior, it impedes the 14 ability of the President, the White House staff and members 15 of the media to conduct business. The If To obtain a temporary restraining order, the 16 17 plaintiffs must clearly demonstrate, one, a likelihood of 18 success on the merits of their claim; two, a likely 19 irreparable harm in the absence of preliminary relief; 20 three, a balance of the -- that the balance of the equities 21 is in their favor; and, four, that the TRO is in the public 22 interest. 23 the TRO, the Court merges the latter two factors into a 24 single inquiry. 25 And where the Government is the party opposing Much of our discussion at the hearing the other Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 7 of 20 1 day concerned the applicability or inapplicability of the 2 D.C. Circuit case Sherrill v. Knight. 3 talk about the likelihood of success of [sic] the merits 4 with regard to the plaintiffs' Fifth Amendment due process 5 claim. 6 6 I'm going to first Much of our discussion at the hearing concerned 7 the applicability of Sherrill v. Knight. 8 closely and I think it's fair to conclude, as the Government 9 argued, that there are at least some portions of it that I've read the case 10 plaintiffs would rely on that are fairly characterized as 11 dicta, but if Sherrill stands for anything at all, 12 it's unavoidable to conclude that it -- to conclude anything 13 other than it stands for the Fifth Amendment's due process 14 clause protects a reporter's First Amendment liberty 15 interest in a White House press pass. 16 holding I agree with or not is another thing, but that is 17 not relevant. 18 district judge, 19 as I see it. 20 I think Whether that's a The case has not been abrogated and, as a I must apply the precedent of this circuit So let me quote from Sherrill. Quote, In our 21 view, the procedural requirements of notice and the factual 22 basis for denial and opportunity for the applicant to 23 respond to these and a final written statement of the 24 reasons for denial are compelled by the foregoing 25 determination that the interest of a bona fide Washington Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 8 of 20 1 correspondent in obtaining a White House press pass is 2 protected by the First Amendment. 3 interest undoubtedly qualifies as liberty which may not be 4 denied without due process of law under the Fifth Amendment. 7 This First Amendment 5 A few more words about Sherrill before I move on. 6 The Government argued that the holding of Sherrill 7 is limited to Secret Service restrictions based on security 8 concerns, and the Government points out there's nothing in 9 the record here that the security of the President or the 10 White House is at issue, but Sherrill, as I read it, 11 provides no reason why the court's recognition of a First 12 Amendment interest in a press pass -- in a White House press 13 pass would turn on whether that decision to limit that 14 interest was made by the White House Press Office or the 15 Secret Service or any other part of the executive branch, 16 and the case suggests no reason to me why the due process 17 required to deny someone a pass would turn on a specific 18 component of the executive branch that made that decision. 19 The court was very clear that the basis of this interest was 20 rooted in the First Amendment and not the decision of any 21 part of the executive branch to agree that Sherrill should 22 be granted the press pass. 23 The Government also made the point that there is 24 case law for the proposition that the public doesn't have a 25 general First Amendment right to enter the White House Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 9 of 20 I have no quarrel with that at all, but Sherrill 1 grounds. 2 holds that once the White House opens a portion of it up to 3 reporters for their use, some kind of First Amendment 4 liberty interest protected by a due process right is 5 created, and I simply have no choice but to apply that 6 precedent here. 7 The Government also argued that some of the 8 factual underpinnings of Sherrill had changed and that 9 today, the White House routinely exercises discretion in 10 different ways, giving out hard passes to certain 11 journalists aside from whatever review the Secret Service 12 undertakes for security purposes. 13 be relevant in examining the nature of whatever liberty 14 interest Sherrill holds is at stake here, but even assuming 15 that was a distinction that would make a difference in terms 16 of how I apply Sherrill, 17 record here; I don't have any declarations or sworn 18 statements that explain how that factual landscape has 19 shifted since Sherrill was decided. 20 I can see how that might I don't have any evidence in the And, finally, the Government makes the point that 21 the First Amendment does not restrict the ability of the 22 President to dictate the terms of how he chooses to engage 23 or not engage with any particular journalist. 24 entirely correct to me, but nothing in the holding of 25 Sherrill relating to the Fifth Amendment due process right That seems 8 Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 10 of 20 9 In fact, Sherrill 1 it recognized contradicts that. 2 explicitly recognizes the President's right to engage with 3 whomever he pleases. 4 Mr. Acosta again. 5 government must provide Mr. Acosta due process if it is to 6 revoke his hard pass. 7 plaintiffs succeed on the First -- on the Fifth Amendment 8 claim hinges on whether the government provided adequate due 9 process to Mr. Acosta. Certainly, he need not ever call on But under Sherrill, as I read it, the Accordingly, the likelihood that the The court in Sherrill held that this 10 process must include notice, an opportunity to rebut the 11 government's reasons and a written decision. 12 court -- although the court in Sherrill did not have 13 occasion to address it, when an important interest is at 14 stake and when the government is able to provide this 15 process before deprivation, it generally must do so. 16 is no evidence that one of the few exceptions to this rule 17 would apply here such as some kind of emergency. 18 hold that plaintiffs have demonstrated a likelihood of 19 success on their claim that adequate process was not 20 provided to Mr. Acosta. 21 within the government is still so shrouded in mystery that 22 the Government could not tell me at oral argument who made 23 the initial decision to revoke Mr. Acosta's press pass -- 24 his hard pass. 25 And all the There So I do Indeed, whatever process occurred On the notice, as for notice, the Government Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 11 of 20 10 1 points to only one statement that could possibly constitute 2 prior notice to Mr. Acosta that his pass would be revoked, 3 the President's statements to him during the exchange at the 4 press conference on November 7th, but the President's 5 statements did not revoke -- did not reference Mr. Acosta's 6 hard pass at all, let alone that it would be revoked; 7 therefore, that statement cannot have put him on notice of 8 the government's intention to revoke it. 9 Now, it is true that the public and Mr. Acosta 10 were eventually provided two things. 11 to why his hard pass was revoked through Ms. Sanders's 12 tweets; and a written statement of explanation, apparently 13 prompted by this litigation, but given their timing and 14 their lack of connection to Mr. Acosta's opportunity to 15 rebut -- which we'll talk about in a moment -- these belated 16 efforts were hardly sufficient to satisfy due process. 17 First, explanations as As for Mr. Acosta's opportunity to be heard in 18 rebuttal, the Government points to the letter CNN sent to 19 the White House the day after his hard pass was revoked, but 20 this does not reflect a meaningful opportunity to rebut the 21 government's reasons for the revocation or to challenge the 22 appropriateness of the government's action. 23 can avail themselves of the mail, and there's nothing in the 24 record that demonstrates that whoever the decisionmaker -- 25 the initial decisionmaker was in this case read or Indeed, anyone Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 12 of 20 And, of course, the letter was sent 1 considered the letter. 2 after the revocation, not beforehand. 3 opportunity to be heard seems especially important in this 4 case when the record strongly suggests that one of the 5 initial specific reasons for the revocation cited by the 6 government -- that Mr. Acosta laid his hands on the White 7 House intern -- was likely untrue and was at least partly 8 based on evidence that was of questionable accuracy. The need for the At oral argument, the Government made the point 9 10 that more process would not have helped here because the 11 ultimate decisionmaker -- I believe, is how the Government 12 referred to the President -- at a minimum, ratified this 13 action. 14 at this point, is devoid of evidence concerning who, in the 15 government, first reached this decision; how they reached 16 the decision; whether they considered CNN's letter or 17 whether they considered potential other responses by the 18 government, Maybe that's so, but on the record before me which, I simply cannot assume that that would be so. 19 So in light of all the above, I find that the 20 plaintiffs are likely to succeed on the merits of their 21 Fifth Amendment due process claim. 22 23 24 25 I'll now talk about irreparable harm with regard to that claim. The plaintiffs also must demonstrate that irreparable harm will result in the absence of preliminary 11 Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 13 of 20 12 That harm must be both certain and great, and it 1 relief. 2 must be actual and not theoretical. 3 Acosta has already occurred. 4 demonstrated a likelihood of success on the merits of his 5 claim that his Fifth Amendment due process rights were 6 violated such that his liberty interests were deprived; 7 therefore, 8 whether harm will occur absent preliminary relief, but for 9 plaintiffs to satisfy their burden, the harm must be Here, harm to Mr. As already explained, he's I don't need to speculate or theorize as to Constitutional injuries are often considered 10 irreparable. 11 irreparable due to their very nature. 12 Circuit has held that, quote, Suits for declaratory and 13 injunctive relief against the threatened invasion of a 14 constitutional right do not ordinarily require proof of any 15 injury other than the threatened constitutional deprivation 16 itself, closed quote. Indeed, the D.C. 17 On the other hand, procedural due process injuries 18 do not necessarily cause irreparable harm when, for example, 19 the thing that is deprived is tangible property, because the 20 due process violation that led to that injury might be 21 reparable with money damages. 22 process violation at issue that has led to the deprivation 23 -- to a deprivation of what Sherrill requires me to 24 recognize as a liberty interest as opposed to a property 25 interest that's grounded in, quote, The First Amendment Here, the procedural due Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 14 of 20 1 13 guarantee of freedom of the press, closed quote. Moreover, the First Amendment interests, as 2 3 recognized in Sherrill, were not vested merely in 4 publications or agencies. 5 individual journalists themselves. 6 CNN may still send another journalist or other journalist to 7 the White House does not make the harm to Mr. Acosta any 8 less irreparable. 9 interest without the process prescribed by the court in They were liberties of the For that reason, that Each day that he is deprived of that 10 Sherrill, he suffers a harm that cannot be remedied in 11 retrospect. 12 briefings that have already occurred or to conversations in 13 the White House press facilities that have already been had. 14 And so on this highly, highly unusual set of facts The Court cannot restore his access to press 15 and interests at stake, I do find that the plaintiffs have 16 met their burden of establishing that irreparable harm has 17 and will continue to occur in the absence of preliminary 18 relief. 19 20 21 The next factors are the balance of the equities and the public interests. In balancing the equities at stake, I find that 22 the harm to Mr. Acosta from sustaining an ongoing violation 23 of his Fifth Amendment due process rights outweighs the 24 government's interest in orderly, respectful press 25 conferences. This is especially so because the government Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 15 of 20 14 1 can serve its stated interest in other ways during this 2 litigation or perhaps until it is back before me arguing 3 that their due process obligations had been fulfilled. 4 Obviously, the balance of the equities would not likely have 5 come out this way if Mr. Acosta had been excluded for safety 6 or security reasons, in which case, my deference to the 7 executive equities would be far, far higher. 8 this circumstance, 9 branch's weighty general interest in control of its White But even in I don't take lightly the executive 10 House press facility, but the balance here is tipped by the 11 fact that Sherrill obligates me to recognize the violation 12 of Mr. Acosta's due process rights and the resulting impact 13 on his First Amendment interests. 14 finding that these factors favor the plaintiffs, 15 considered case law that suggests that constitutional 16 violations are always contrary to the public's interest. 17 So in finding -- also, in I have also So because the plaintiffs have shown a likelihood 18 that the government has violated Mr. Acosta's Fifth 19 Amendment rights under Sherrill, because the type of injury 20 he has suffered is irreparable and because the public 21 interest in the balance of equities favor granting a 22 temporary restraining order, I will grant the application 23 for a -- for the temporary restraining order here. 24 order the defendants immediately restore Mr. Acosta's hard 25 pass until further order of the Court or the restraining I will Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 16 of 20 15 And if, at some point after restoring the 1 order expires. 2 hard pass, the Government would like to move to vacate the 3 restraining order on the grounds that it has fulfilled its 4 due process obligations, then it may, of course, do so and I 5 will promptly address that and then the remaining bases for 6 the TRO. I want to emphasize the very limited nature of 7 8 today's ruling. 9 I've found that it must be granted on -- as to the due In resolving this TRO, I haven't -- because 10 process claim, I haven't had to reach the plaintiffs' First 11 Amendment claim at all in which they alleged that the 12 government engaged in viewpoint or content discrimination. 13 So I want to make very clear a couple of things. 14 determined that the First Amendment was violated here; 15 have not determined what legal standard would apply to the 16 First Amendment claim here; I have not determined the 17 specific nature of the First Amendment interest that 18 Sherrill recognizes -- or that Sherrill at least doesn't 19 describe but recognizes, yes; and I haven't determined what 20 portions of Sherrill, if any, would bind me on those 21 questions. 22 I have not I So let me turn to the parties, then, and suggest 23 that as far as procedurally moving forward goes, one -- the 24 avenue I thought of is to give you all some time to consult 25 with your clients; assess your positions; and come back Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 17 of 20 1 early next week -- perhaps Tuesday afternoon -- to see how 2 you all would like to proceed from here. 3 this litigation will continue in a rapid pace. 4 party? MR. BOUTROUS: 5 6 Thank you. 16 I trust the -Either Thank you very much, Your Honor. That sounds like a good process to us. 7 We can We may be able to just confer and then report back 8 confer. 9 Monday with the proposal and see if we can work out either a 10 briefing schedule for the preliminary injunction or 11 something else and, if not, we can just come back and see 12 you on Tuesday. THE COURT: 13 14 All right. a written joint report for the parties -- 15 MR. BOUTROUS: 16 THE COURT: 17 MR. BOUTROUS: 18 Would that -- -- on Monday? Yeah. Would that work for the Court? THE COURT: 19 20 So your proposal would be All right. That's fine, if that's -- but I'd like to hear from Mr. Burnham. MR. BURNHAM: 21 Your Honor, I'd like to talk to our That should be okay, but I'd just like to talk to 22 clients. 23 our clients and come up with a proposal before we -- 24 25 THE COURT: Absolutely. I mean, we can't have any quicker turnaround than a joint report -- Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 18 of 20 1 MR. BURNHAM: 2 THE COURT: 3 MR. BURNHAM: 4 THE COURT: 5 MR. BURNHAM: 6 Right. -- on Monday. So -- Right. I mean, I -- The timing certainly works for us. Thank you. THE COURT: 7 Fair enough. So I'll get that report. 8 Obviously, if you can agree on something, great; if you 9 can't agree, if you would still submit it jointly but just 10 lay out your respective positions on where we go from here, 11 I'll take that under advisement, and my hope is -- well, 12 depending on what you all agree to, if we need to come back 13 to court next week, even though it's the short week -- the 14 holiday -- I will be available to do that. 15 MR. BURNHAM: 16 THE COURT: 17 MR. BOUTROUS: 18 Okay. Thank you, Your Honor. All right. We greatly appreciate it, Your Honor. All right. 19 THE COURT: 20 MR. BOUTROUS: And then just procedurally, under 21 the TRO, we'll just proceed to get the hard pass back 22 immediately and have it reactivated. 23 17 THE COURT: Yes. Thank you very much. Is there any other -- anything 24 further -- else from the plaintiffs that you think I need to 25 address today before I turn to Mr. Burnham? Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 19 of 20 1 MR. BOUTROUS: 2 THE COURT: 3 MR. BOUTROUS: 4 THE COURT: 5 MR. BURNHAM: 6 THE COURT: 8 MR. BURNHAM: 10 All right. So Your Honor, under the local Okay. Would it be okay, given all that's going on, to suspend that deadline until we file our joint status report? THE COURT: 12 MR. BURNHAM: 13 THE COURT: 14 MR. BURNHAM: 15 THE COURT: 16 MR. BOUTROUS: 17 MR. BURNHAM: 18 MR. BOUTROUS: 19 THE COURT: Yeah. I assume the plaintiffs -- I assume -- -- would agree to that. We haven't spoken about it. Yes. That's fine with -Okay. That's fine with us, Your Honor. Yeah. So that deadline certainly will be, you know, held in abeyance -- 21 MR. BURNHAM: 22 THE COURT: 23 Thank you. Sir? 11 20 I think that's it, Your Honor. rules, our opposition to the PI is due on Tuesday. 7 9 18 Thank you, Your Honor. -- vacated until I get your report and we'll see where we go from there. 24 MR. BURNHAM: 25 THE COURT: Thank you, Your Honor. All right. Case 1:18-cv-02610-TJK Document 23-1 Filed 11/19/18 Page 20 of 20 1 MR. BOUTROUS: 2 THE COURT: 3 counsel's dismissed. 4 5 6 7 8 9 19 Thank you. If there's nothing further, then, THE DEPUTY CLERK: All rise. This Honorable Court is adjourned. (Proceedings concluded at 10:28 a.m.) * * * * * * * * * * * * * CERTIFICATE OF OFFICIAL COURT REPORTER I, TIMOTHY R. MILLER, RPR, CRR, NJ-CCR, do hereby certify 10 that the above and foregoing constitutes a true and accurate 11 transcript of my stenographic notes and is a full, true and 12 complete transcript of the proceedings to the best of my 13 ability, dated this 16th day of November 2018. 14 15 16 17 18 19 20 21 22 23 24 25 /s/Timothy R. Miller, RPR, CRR, NJ-CCR Official Court Reporter United States Courthouse Room 6722 333 Constitution Avenue, NW Washington, DC 20001