Theodore J. Boutrous Jr. Photo: Diego M. Radzinschi/NLJ

Judges on the U.S. Court of Appeals for the D.C. Circuit on Monday pressed the Justice Department on what grounds the White House can suspend press access for reporters found to have violated norms of professional behavior while covering official events.

In a case that tests the administration's regulations on when a reporter's hard pass—which grants them full access to the White House—can be suspended, the panel questioned attorneys on both sides about exactly what is considered inappropriate behavior worthy of a sanction, and exactly what penalties should be imposed.

Judges David Tatel, Cornelia Pillard and Chief Judge Sri Srinivasan heard the arguments over the phone in a lawsuit filed by Gibson, Dunn & Crutcher's Theodore Boutrous on behalf of Playboy reporter Brian Karem, whose White House hard pass was temporarily suspended after an altercation last year with former Trump aide Sebastian Gorka in the Rose Garden.

U.S. District Judge Rudolph Contreras of the District of Columbia in September granted a preliminary injunction blocking the suspension of Karem's pass, finding White House press secretary Stephanie Grisham "failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances."

Justice Department attorney James Burnham on Monday urged the appellate judges to overturn the injunction, saying that every White House reporter with a hard pass "knows perfectly well they're not permitted to engage in unprofessional behavior on the White House grounds."

"It is simply inconceivable to me if the press secretary would be unable to take action if a reporter sexually harassed someone on the White House staff or shouted racial epithets," Burnham said.

Srinivasan asked Burnham if there was a scenario where a White House guest and reporter could make a comment in jest toward each other about a physical altercation, and whether that could merit taking action against the reporter.

Burnham said it could possibly lead to a sanction "because the professionalism standard applies."

"At that point it's just a question of whether the press secretary finds" the reporter violated that standard, he said.

Burnham also described Karem's explanation that his offer to Gorka to "go outside and have a long talk" was an invitation for a conversation elsewhere and not a suggestion for a physical altercation as "ridiculous" and "disingenuous."

He further said a court could impose a similar penalty if a lawyer behaved unprofessionally in a courtroom—an argument that Pillard took issue with, as she disputed that courts had the power to take actions that would prevent attorneys from being able to do their jobs and represent their clients.

"I don't think it wouldn't raise a similar problem if we tried to ban the person from the court and suspend their bar license," she said.

Pillard also questioned whether Karem's conduct fell under a specific rule that put the correspondent's press pass in jeopardy. She noted that a White House letter after a similar dispute over CNN reporter Jim Acosta's pass said no formal rules on media conduct were being adopted, and that actions below the level of a pass suspension could be taken instead.

Boutrous told the panel that he did believe reporters could face repercussions for their actions. He said the Secret Service could step in if they felt a journalist's actions constituted a security threat.

But he said the issue here is whether the White House can take action beyond stopping the behavior in the moment, arguing there are no clear guidelines or regulations about when a reporter's hard press can be suspended, even temporarily.

"There's no question it's irreparably harmful to be denied to be able to cover the White House, to do your job," Boutrous said.

He also invoked the current coronavirus pandemic as reason reporters need full access to the White House to question officials over the federal response to the global health crisis.

Monday's arguments were held over the phone in response to public health restrictions implemented due to the COVID-19 pandemic. The court held telephonic arguments for the first time Friday, and experienced some technical issues in the rollout.

Burnham also seemed to have some difficulties with the new system at first Monday: When he first began speaking, no one could hear him on the conference call. But his audio was quickly established and arguments soon began.

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