A federal appeals court ruled Friday that the White House wrongly suspended the hard pass of Playboy’s correspondent Brian Karem after a raucous incident in July in which he got into an argument with Donald Trump’s former aide Sebastian Gorka following a Rose Garden ceremony.
A three judge panel of the D.C. circuit ruled unanimously to uphold a lower court ruling in favor of Karem, concluding that he “lacked fair notice that the White House might punish his purportedly unprofessional conduct by suspending his hard pass for a month.”
On Sept. 3, U.S. District Judge Rudolph Contreras granted Karem’s motion for a temporary restraining order and preliminary injunction. He found that then-White House Press Secretary Stephanie Grisham’s rationale for revoking the pass was too vague.
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The appellate justices agreed.
“To the extent Karem’s ‘irreverent, caustic attempts at humor’ (to use the district court’s language) crossed some line in the White House’s view, those transgressions were at least arguably similar to previous journalistic misbehavior that elicited no punishment at all, let alone a month’s exile,” Judge David S. Tatel wrote in the opinion.
Karem and Gorka got into a confrontation following the conclusion of a July 11 Rose Garden event, in which Trump spoke to an audience that included Gorka and other right-leaning media personalities and supporters.
After Grisham informed Karem she was suspending his hard pass for 30 days, calling his conduct “unacceptable and disruptive,” he sued. A hard pass, meant for full-time reporters at the White House, allows correspondents to come and go without having to apply for credentials each time they visit.
Gorka claimed that Karem threatened him when he said that they should “go outside and have a long conversation.”
But Tatel, in his opinion, wrote that Karem’s claim that his due process rights were violated was “likely to succeed because, on this record, nothing put him on notice of ‘the magnitude of the sanction’ — a month-long loss of his White House access, an eon in today’s news business — that the White House ‘might impose’ for his purportedly unprofessional conduct at the non-news conference event.”
The judges did limit the scope of the injunction to the press secretary, not to Trump himself, but Karem did not contest that point.
Karem’s attorney, Theodore J. Boutrous of Gibson, Dunn & Crutcher, said in a statement, “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. 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.”
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