Justice Department attorney James Burnham said the White House wasn’t required to have a formal policy in order to take action over behavior that was beyond the pale.

“Every credentialed White House reporter, including Mr. Karem, knows perfectly well that they are not permitted to engage in unprofessional behavior on the White House grounds,” Burnham said. “There has always been an enforceable requirement that reporters with hard passes behave in a professional manner.”

Burnham, who argued the case in the district court and was recently named as a counselor to Attorney General William Barr, said Karem’s position that he’s entitled to know all specific rules in advance would mean reporters couldn’t be punished for sexually harassing White House staff, shouting racial epithets or even for mooning the president unless the White House made public rules barring such acts.

“That’s clearly incorrect,” Burnham said during arguments that took place by telephone conference call as a result of the ongoing coronavirus pandemic. He complained that Karem was claiming “one free shot at any egregiously unprofessional conduct that the White House has not expressly prohibited beforehand.”

Karem’s lawyer, Ted Boutrous, said Trump encourages a “carnival-like” environment at White House events that leaves considerable ambiguity about what kind of behavior by reporters is fair game.

“This unruly, raucous, circus-like atmosphere … President Trump, for better or worse, creates that sort of atmosphere,” Boutrous said.

At times, the differences between the two sides were stark. While Boutrous said letting the White House ban a reporter over his comments posed “a real First Amendment danger,” Burnham disagreed.

“This is just not a First Amendment case,” the Justice Department lawyer said.

Burnham also hammered away at Karem’s defenses of his conduct, particularly his claim that offering to have “a long conversation” with Gorka was a genuine invitation to have a discussion in nearby Lafayette Park.

“That is an utterly preposterous explanation for what Mr. Karem engaged in here,” Burnham said,

However, the judges did not seem particularly troubled by Karem’s actions, which the district court found not obviously outrageous in the context of the freewheeling event.

Judge Nina Pillard seemed most squarely in Karem’s corner, lambasting Burnham for arguing that the reporter wasn’t entitled to prior notice of what kinds of behavior could lead to suspension of his credentials.

“Mr. Karem had a press pass. And the notion that the standard for taking it away when the only basis was speech by Mr. Karem and the whole area is obviously you know a First Amendment-protected area, that the authority there would not have to be announced in advance, I just find that astounding,” said Pillard, an appointee of President Barack Obama. “I mean: Of course, it has to be announced in advance.”

Pillard also said she found it curious that there was no indication other White House reporters had ever had their passes pulled for “unprofessional” behavior.

Radio host Sebastian Gorka (right) argues with Playboy’s Brian Karem after President Donald Trump spoke about the 2020 census in the Rose Garden of the White House on July 11, 2019. | Alex Brandon/AP Photo

“Isn’t it relevant that nobody who has shouted at the president or jostled another journalist or done things that one might under your reading see as clearly unprofessional, has ever had [a] press pass suspended?” she asked.

Burnham said those sorts of actions were “categorically different” than insulting White House guests. “None of the other reporters who didn’t have their questions answered felt like they needed to insult the gathered guests,” he said.

Judge Sri Srinivasan was somewhat harder to read, expressing concern that letting Karem escape with no consequence might mean that reporters were free to engage in any behavior that wasn’t illegal, no matter how disruptive, offensive or inappropriate. He asked what the White House could do if a reporter was “screaming and yelling ad nauseam, laced with profanity and epithets.”

Boutrous said the Secret Service could take action against anyone who seemed like a threat and the White House could temporarily remove someone from an event if his or her behavior was bizarre. In addition, the White House could give a reporter a formal warning or call the person’s editor to complain.



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“That’s how it’s always been done,” he said, but suspension of a reporter’s pass went too far in the absence of a clear rule, clearly violated.

During the episode last July, Karem unsuccessfully shouted a question at the president as he left the event. Guests at the event then began taunting him, prompting him to shout: “This is a group of people who are eager for demonic possession.”

Gorka then ran out of the crowd toward the press section, declaring: “You’re not a journalist. You’re a punk!” Karem then suggested taking the conversation “outside,” as a Secret Service agent stepped forward with apparent concern the two men might come to blows.

In response to another hypothetical from Srinivasan on Monday, Burnham took a sweeping position that the White House could suspend a reporter over just about any threat to fight a White House guest, even if the threat seemed to be in jest and followed a similar comment from the guest.

“The gray zone is fair game,” Burnham insisted.

The telephone arguments — which ran to about 70 minutes, more than double the allotted time — went off largely without incident. However, they were delayed briefly by difficulty getting Burnham on the line. The third judge on the panel, David Tatel, was extremely difficult to hear on the audio feed streamed via the internet.

The case is the first fight over White House credentialing to reach the powerful appeals court in more than 40 years. In 1977, the D.C. Circuit ruled that the First Amendment required that Nation Magazine reporter Robert Sherrill be given a clear basis for denial of a White House pass and an opportunity to challenge the refusal. The court also said the White House needed to articulate “an explicit and meaningful standard” for who was entitled to such passes.

