Friday morning, Judge Timothy Kelly ruled in favor of CNN and reporter Jim Acosta in their request for a temporary restraining order to force the White House to return Acosta’s hard pass. David Asman, co-anchor of Fox Business’ “Bulls & Bears” weighed in on the ruling as a guest on Fox News’ “America’s Newsroom,” and completely missed the point that Judge Kelly made with his ruling.
First, Asman made an odd comment about separation of powers, which was not even at issue in this case.
“This is a key issue of separation of powers, whether the judiciary has the right to tell the executive how to run its own press office,” he said. The idea that the courts can check other branches of government–which includes the president–is a cornerstone of the American political system. The whole point is that the court is deciding whether or not the White House acted in accordance with existing law.
Then Asman started talking about the First Amendment, which was raised in the lawsuit, but did not play any role in Judge Kelly’s ruling on Friday.
“If there’s some interpretation of the First Amendment that would transcend any individual rights that the executive has to decide who gets in and who gets out, I do think it’ll go to a higher court,” Asman said, when giving his thoughts on how this case will proceed.
Judge Kelly’s ruling, however, was based solely on the Fifth Amendment right to due process. The judge stated that the White House did not provide sufficient due process and that Acosta and CNN were likely to win on that claim, so he granted their request for a temporary restraining order.
Asman again brought up the First Amendment later in the segment.
“I think it would make a very interesting Supreme Court case to see whether the First Amendment goes far enough so that they can order the White House to decide who gets a press pass and who doesn’t,” he said.
This is despite Judge Kelly specifically saying he was not weighing in on the First Amendment issue when he made his ruling.
To be fair, Asman was already on the air when the ruling was made, so it’s likely that this was the result of him not receiving enough information about the nature of the ruling before having to discuss it. Still, there were several legal arguments being made in the case, so there was no reason to assume why the judge ruled the way he did.
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