CABLE NEWS NETWORK, INC. et al v. TRUMP et al

Filing 4

MOTION for Preliminary Injunction by ABILIO JAMES ACOSTA, CABLE NEWS NETWORK, INC. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order) (See Docket Entries 2 3 for Exhibits)(jf)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CABLE NEWS NETWORK, INC. and ABILIO
JAMES ACOSTA,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as
President of the United States; JOHN F. KELLY, in
his official capacity as Chief of Staff to the President
of the United States; WILLIAM SHINE, in his
official capacity as Deputy Chief of Staff to the
President of the United States; SARAH HUCKABEE
SANDERS, in her official capacity as Press Secretary
to the President of the United States; the UNITED
STATES SECRET SERVICE; RANDOLPH ALLES,
in his official capacity as Director of the United
States Secret Service; and JOHN DOE, Secret
Service Agent, in his official capacity,

Case No.

Defendants.
PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Plaintiffs Cable News Network, Inc. (“CNN”) and Abilio James (“Jim”) Acosta hereby
request, pursuant to Fed. R. Civ. P. 65(a) and Local Rule 65.1, that this Court issue a preliminary
injunction requiring Defendants to rescind the revocation of Acosta’s White House credentials
and restore Acosta’s credentials to him. Alternatively, Plaintiffs request that this Court, at a
minimum, issue a preliminary injunction requiring Defendants to restore Acosta’s credentials
pending due process, including but not limited to a formal written explanation of Defendants’
justification for the revocation and an opportunity for Acosta to respond to those justifications, in
advance of any revocation.

A preliminary injunction is warranted here. Plaintiffs are likely to succeed in establishing
that Defendants have violated, and continue to violate, Plaintiffs’ rights under the First and Fifth
Amendments of the U.S. Constitution and the Administrative Procedure Act. The law is clear:
As the D.C. Circuit has held, “the protection afforded newsgathering under the first amendment
guarantee of freedom of the press requires that this access [to White House press facilities] not
be denied arbitrarily or for less than compelling reasons.” Sherrill v. Knight, 569 F.2d 124, 129
(D.C. Cir. 1977). And “notice . . . of the factual bases for denial [of access to White House press
facilities] with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is
. . . [not] based on arbitrary or less than compelling reasons.” Id. at 131. The government
complied with none of these safeguards here, stripping Acosta of his credentials and White
House access with no process whatsoever, in violation of the First Amendment and the Due
Process Clause.
The harm is immediate and ongoing. Due to the exigency of the circumstances and the
irreparable nature of the injury the temporary restraining order would prevent, Plaintiffs request a
hearing on their motion for a preliminary injunction on Tuesday, November 13, 2018, and no
later than Wednesday, November 14, 2018. The Defendants continue to violate Plaintiffs’ rights.
For example, on the Sunday after Defendants revoked Acosta’s credentials, the Defendants
denied him access to cover the “open” press event during the President’s trip to France on the
one hundredth anniversary of the end of World War One even though Acosta was present and
had a French government-issued press pass. Every day that passes without Acosta regaining his
press credentials is a concrete injury. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion) (“The loss of First Amendment ‘freedoms’ . . . unquestionably constitutes irreparable

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injury.”); Pursuing Am.’s Greatness v. Fed. Elec. Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016)
(First Amendment violations “for even minimal periods of time” constitute irreparably injury).
This Court should issue a preliminary injunction to preserve the rights of the parties
pending a resolution of this matter on the merits. As explained at greater length in the
accompanying memorandum, the balance of the equities and the public interest favor granting an
injunction. Plaintiffs therefore request that this Court issue an injunction requiring Defendants to
rescind the revocation of Acosta’s credentials and restore them to him, or, at a minimum, to
restore Acosta’s credentials until Defendants afford him appropriate process.
Dated: November 13, 2018

Respectfully submitted,
_______________________________
Theodore J. Boutrous, Jr., (D.C. Bar No.
420440)
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Ave.,
Los Angeles, California 90071
Tel: [phone]
[e-mail]
Theodore B. Olson (D.C. Bar No. 367456)
Joshua S. Lipshutz (D.C. Bar No. 1033391)
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Tel: [phone]
[e-mail]
[e-mail]
Anne Champion (pro hac vice forthcoming)
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166-0193
Tel: [phone]
[e-mail]
Counsel for Plaintiffs Cable News Network,
Inc., and Abilio James Acosta

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