2ND UPDATE, 3:26 PM: In her decision to suspend the hard pass of Playboy’s White House correspondent Brian Karem, White House Press Secretary Stephanie Grisham cited remarks from a Secret Service agent who intervened as Karem exchanged heated words with former Trump aide Sebastian Gorka during a Rose Garden event last month.
But on Wednesday, Justice Department attorneys informed a federal judge that there is no written statement from the agent, whose view of the confrontation could have proved critical in deciphering what transpired on July 10.
The DOJ lawyers said that there are “notes taken by an attorney in the Office of White House Counsel from an interview with the agent, but Defendants understand that this court’s order does not apply to such notes.”
U.S. District Judge Rudolph Contreras, who is weighing Karem’s motion to reinstate his White House hard pass, had asked for any statement from the agent as he studied the reporter’s behavior that day, and whether the pulling of his press credentials was warranted. Karem’s legal team is challenging the suspension, claiming it violated his due process and First Amendment rights.
Grisham claims that the agent intervened because he “believed there was a risk of a physical altercation.” But Karem’s legal team had criticized the lack of any statement from the agent himself.
UPDATED with more details: A federal judge in Washington, D.C., said he will decide by Tuesday, if not earlier, whether to reinstate the hard pass of Playboy’s White House correspondent Brian Karem.
Karem sought a court order today to immediately restore the pass, the latest chapter in the ongoing confrontation between the Trump administration and the media.
His legal team, led by Theodore Boutrous of the law firm Gibson Dunn, argued that Karem’s credentials were pulled in violation of his due process and First Amendment rights. They claim that the stated reason for the suspension — over an argument he had with former aide Sebastian Gorka at a July 11 Rose Garden event — was in fact a pretext for punishing a reporter whose coverage they dislike.
In a two-hour hearing, Judge Rudolph Contreras asked many questions about Karem’s conduct at the White House event last month that led to the suspension. But he also indicated he was struggling where to draw the line when it comes to standards of conduct for reporters at White House events.
“It’s still a fairly amorphous standard — professionalism, decorum,” Contreras said. He told James Burnham, the Justice Department attorney representing the Trump administration, that there needed to be a “wide berth” given to what that actually means, as the case involves constitutional issues.
Karem sat in the first row during the hearing, at one time shaking his head as Burnham recounted the Trump administration’s version of events.
The White House informed Karem on August 2 that it had made a preliminary decision to suspend his hard pass for a month, but that he would have the chance to appeal. He did, but White House Press Secretary Stephanie Grisham informed him on August 16 that they had made a final determination to pull his credentials for 30 days. In her letter, she wrote that Karem’s conduct was “unacceptable and disruptive.”
The suspension of Karem’s hard pass has triggered the second legal showdown over the issue of which media outlets are granted access to the White House and which are not. In November, CNN’s Jim Acosta sued after his hard pass was abruptly pulled just hours after he got in a testy exchange with Trump at a post-midterm election press conference. A federal judge ordered that Acosta’s pass be restored, concluding that the White House failed to follow due process. Boutrous also represented Acosta and CNN in that case.
In contrast to the Acosta case, the White House claims Karem was given adequate notice of their decision and an opportunity to respond. They say that far from being singled out, Karem is “indistinguishable from much of the White House press corps.”
“The reality is that the White House press corps is populated by reporters who are aggressive questioners of the President and White House officials, many of whom are extremely critical of the president and his policies,” a team of Justice Department lawyers wrote in a brief responding to Karem’s lawsuit.
At the hearing, several videos of the Rose Garden incident were played, to the point where Contreras quipped that “this has got to be the most well-documented disputed event I have ever seen. Even bank robbery videos aren’t this clear.”
Karem and Gorka got into a confrontation following the conclusion of the Rose Garden event, in which Trump spoke to an audience that included Gorka and other right-leaning media personalities and supporters, including Joy Villa and James O’Keefe.
Karem, standing behind a designated rope line to pen in reporters, at first engaged with one of the attendees and quipped, “This is a group of people who are eager for demonic possession.” Gorka then shouted at him, “And you’re a ‘journalist,’ right?”
Karem responded, “Hey, come on over and talk to me, brother, or we can go outside and have a long conversation.”
Gorka then approached him, saying, “You are threatening me now in the White House. In the Rose Garden. You are threatening me in the Rose Garden.” As Gorka got about two feet away, he shouted at Karem, “You are a punk. You are not a journalist. You are a punk.”
As Gorka walked away, and those in the crowd began chanting, “Gorka! Gorka!,” Karem said, “Go home,” and then shouted at him, “Hey Gorka, get a job!”
Grisham claimed that Karem “threatened to escalate a verbal altercation into a physical one to the point that the Secret Service deemed it prudent the intervene,” and that Karem later sought out Gorka in the Palm Room of the White House “in what quickly became a confrontational manner while repeatedly disobeying a White House staffer’s instructions to leave.”
But Boutrous disputed that account, saying that far from trying to escalate the situation, Karem was merely trying to talk to Gorka and even extended his arm for a handshake. Although a White House staffer can be heard asking participants to leave, it was a fairly routine instruction that was eventually followed.
Contreras zeroed in on the Rose Garden incident, and whether Karem actually was making a physical threat to Gorka by offering to “go outside.” He said that the remark had “a connotation of altercation,” but he also said that the incident had to be viewed in the context of what was going on.
The crowd gathered in the Rose Garden was made up of a colorful case of characters, many from the right and popular on social media, while the members of the White House press corps stood off to the side behind a white rope. After Trump made his remarks and left, some of the right-leaning personalities began to make verbal taunts to the mainstream press.
“There was a lot of misbehavior there that was apparently tolerated,” Contreras said.
But Burnham said that it was only Karem who “responded to being taunted by challenging someone to a fight.”
Karem denies that he was making a threat — and his legal team is focusing on what they see as arbitrary behavior by Grisham, who was not present at the time.
They argued that the rationale for suspending his hard pass — for lack of decorum — is based on a set of vague and unwritten guidelines, or “unwritten understandings that may not be known to reporters, but are known to Ms. Grisham.”
“She admits that there are no meaningful published standards,” Boutrous said. “On that point alone there is a strong likelihood of success” in the case.
Karem’s legal team also said that case was about more than the suspension of Karem’s pass, but was part of a White House effort to “weaponize hard passes to punish what it deems ‘fake news.’ ” Those factors, Karem’s attorneys said, “all point to impermissible viewpoint discrimination.”
Boutrous at one point cited a recent profile of Grisham in the New York Times, reporting that when she was spokeswoman for the Arizona House’s Republican majority, she pulled the credentials of the Arizona Capitol Times four hours after it reported that the House Speaker had used taxpayer funds for campaign travel.
A hard pass allows reporters regular access to the White House without having to apply for credentials on a case-by-case basis. They are typically granted to reporters who are assigned to the West Wing to cover Trump full time. Karem’s legal team argued that the hard pass is essential for doing his job, as ongoing access to the White House is even more necessary now because the Trump team no longer holds regular press briefings.