Trump Sued Over Media Ban & Another ICE Shooting

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1:55Now, if they want to write them, that's fine. But I don't have to let them into the people's house. President Trump is banning CNN, MSNOW and Politico from the White House because he doesn't like their coverage of him. It's really just cumulative stories over the last few years. You get sick of it. The news outlet sued Trump today, saying that the ban is a direct assault on the First Amendment. The ban marks a significant escalation in the administration's efforts to curb press access to events and spaces that are in the public interest, a move no president before Trump has ever taken, even seeming to take former President Barack Obama by surprise.

2:43You just can't come to the White House press briefings anymore because you're giving the current president unfavorable coverage. I'm trying to think what would have happened if I had said, you know what, Fox News, you're out of here. It's unimaginable. President Trump is banning CNN, MSNOW and Politico from the White House because he doesn't like their coverage of him. Trump said that he was going to ban these outlets, citing what he said was unfavorable coverage of his administration. A very simple ban. I don't want them in my office. I don't want them here. I would say the ban would go as far as you can.

3:28What's your first reaction to this ban? Well, my first reaction is this is more of the same with regard to the sort of longstanding war on the press, right? So ever since Trump entered politics, he's been railing against the press and journalists and particularly outlets that report critically on the administration or him. And when they report things he doesn't like, he denigrates them. He calls it fake news. And now in the second term, he's taking more concrete actions than he was in the first term. So this is an escalation. It's blatantly unconstitutional to exclude the press or particular journalists or particular media based on the point of view that they publish or the content of what they publish, whether he likes it or not.

4:17That is the definition of a free press, that the president can't just pick and choose the coverage he wants. Every president would like to do that, of course, But only in authoritarian countries can you actually pick and choose which news gets reported and punish reporters that don't sort of toe the party line. What Trump calls fake news is coverage of him and his administration that's negative. But let's just say that one outlet repeatedly made mistakes in their coverage. Let's take that as a hypothetical. Would that affect the analysis here at all? Right, which hasn't been demonstrated, but hypothetically, you know, look, fake news used to have a real meaning in the sense that, you know, it was made up stories, things that didn't actually happen, but that the press reported as true.

5:08That's all now coming from the White House. The made up stuff, the facts that don't exist or the sort of alternative facts, as they were once called in the first Trump presidency. You can't punish the press because it makes mistakes either. I mean, you can sue them and Trump has. He sued plenty of media outlets, as you know, for defamation and election fraud and other types of claims. He typically loses those cases because he doesn't have evidence that the media is actually making up stories or knows what it's reporting is false or is reckless with regard to its truth. So it really is a case of when you open up a place like the White House and you invite journalists in, you are constrained with respect to how and whether you can exclude them.

5:56And one thing you can't do is just sort of enact or impose a ban on news media that you don't like. And in addition to sort of the First Amendment problems with that, there's something called the Due Process Clause, which means when you credential reporters, they have some entitlement to notice and an opportunity to contest in your hypothetical non-factual reporting or whatever it may be, the basis for their ban. And he hasn't given that either. He just sort of issued an edict on Truth Social and in the press briefing. And so there are due process problems or First Amendment problems. That's it.

6:31It's just blatantly unconstitutional. So the outlets are suing, obviously. Is there anything that stands out to you in their lawsuit or is it basically what you just talked about? I mean, it's essentially the same thing. It's a bit of a replay of the lawsuit the Associated Press filed when it was excluded from, in that case, Air Force One and the Oval Office because it refused to use Gulf of America instead of Gulf of Mexico. That case is still being litigated. This is different because it's a broader ban. It's not just the Oval Office or Air Force One where the president may have greater control over who he communicates with in terms of press and others.

7:12It just bans them from the White House grounds. And you had reporters stopped at the gates, as you know, their credentials confiscated in some cases by the Secret Service. So the lawsuit does say this is viewpoint based discrimination in what is called a public forum, sort of a First Amendment term for government property that's been open to some extent to, in this case, press activity. that it's also retaliation for reporting that the president doesn't like. And retaliation claims have just mushroomed all over the place during the second Trump presidency because he's vindictive. And he goes after not just media outlets, but as you know, reporters in very personal ways.

7:53Right. So, again, this is an escalation. It's a broader ban than the thing that happened to the AP. it's good that they're suing to assert their rights because the press has been pretty, I don't know, welcoming of this sort of abuse, but sort of putting up with it to some degree. And so it's good to see some pushback. As far as the AP, did they get a preliminary injunction or anything to allow them to cover what he excluded them from? Yeah, they got a preliminary injunction from the district court and then the government appealed and they got a stay from a divided panel of the D.C. Circuit. And that litigation is ongoing.

8:35So there's a stay that the government got or obtained from the D.C. Circuit, and now it is up on the merits. So in that lawsuit, right, as I said, the spaces at issue were Air Force One, the Oval Office. That's a tougher case to make, not an impossible one, but the panel that granted the stay was of the view that those spaces are not, in fact, a kind of public forum. The president can decide who he meets with in the Oval Office or on Air Force One. At some point in the opinion in the D.C. Circuit, they said, well, you know, if Trump grants an interview to Laura Ingraham, he doesn't have to then grant one to Rachel Maddow.

9:13So he can pick and choose who he wants to give an interview to. But it distinguished specifically the D.C. Circuit, places like press briefing rooms in the White House, which are clearly open for a particular purpose. And there, the viewpoint neutrality rules do apply quite clearly. Actually, Trump loves press coverage. He hardly ever passes a microphone without answering questions. And he has almost daily Q &As in the Oval Office. But now the major news outlets are stopping pool coverage of the president. So just to explain for those that may not know, so there's a pool that covers White House events so that you have one camera there covering it for all the outlets and then individual reporters.

10:04So CNN was supposed to be the pool that covered him on the New York trip. The email said that effective today, the TV pool will not be covering events designated as pool coverage of the president. and ABC News, CBS News, CNN, Fox News, and NBC signed that. So is this going to hurt him at all because he's not going to get the same kind of coverage he would have? Well, he always gets coverage, right? So I think the president knows there's a way that he can go above the press, which is why his social media account is so active, right? So he doesn't need the press in the way that, say, past presidents did to sort of mediate between him and audiences, I will say it's baffling the extent to which he gets credit for being, quote, transparent, just to appear before the media and then say things that are blatantly false.

10:59And then when you're checked on the falsity of them to sort of personally in an ad hominem way to attack reporters, I don't think a president should get credit for that. I think, you know, if you want to play the yardstick game, which president has lied more than this one to the assembled press? And, you know, when I mentioned pushback or backboning earlier with regard to the press, a lot of people think, you know, why do they just sit there and take it? Especially the female journalists who are routinely subject to the sort of personal abuse, the piggy comment and the rest. And of course, you know, they have professional standards and they're trying to uphold decorum.

11:36So a shouting match with the president's no good and they don't want to be denied access. But I just don't think that assembling a bunch of people from the press and then berating and lying to them is actually what transparency means. So you could count the number of pressers the president holds, that's fine. But the content of those pressers, I think, should be looked at too. You mentioned the escalation with AP, but also the Treasury Department excluded journalists from several outlets, including Bloomberg News, the New York Times and the Wall Street Journal from covering the Group of 20 Finance Ministers Summit.

12:12I don't think there's been a lawsuit over that. There have been lawsuits filed by the New York Times, in particular over New Pentagon press policies, and those have been successful so far in the court. So this is sort of an extensive all of executive branch campaign against the press. So, you know, the FTC, the FCC, which has been at war with Disney and ABC, you and I have talked about that. It's not just the one thing to sort of take a wider lens here. And sometimes those restrictions result in lawsuits. And I'm suspecting sometimes they result in, I don't know if you'd call it negotiations or behind the scenes rather than litigation, but they're all troubling from a First Amendment perspective, putting aside the sort of technicalities of First Amendment doctrine or due process rights, it is not committing yourself to a free press to conduct yourself the way this administration is, quite the opposite.

13:10Tim, President Trump acknowledged that the ban could be struck down by a judge, but he said, I think it's good to point it out whether it survives or doesn't, which is, you know, his let the courts decide, but it doesn't matter because it's the litigation that counts? Yes. I've made this point before, but I think this administration is exceptional in lots of different ways. But one of the ways they're exceptional is they don't seem to care about winning in court or even impressing judges with, you know, their work, their ethical standards and so forth. The point is the fight. And when he sues the press, the point is to make them defend themselves and put up money to do it.

13:49And it's good politics for him to be a plaintiff and the New York Times and the Wall Street Journal to be defendants and so forth. So I think this is more of the same. And when a judge ultimately strikes this down and will strike it down, I predict, they'll call the judge a rogue judge or a liberal judge, no matter which president appointed the judge. And so it's all part of the fight. And the point of it is to pick the fight and to keep this sort of war against journalists and the free press in the news. And it's just part of their political playbook at this point. And when he says things like I'm banning the free press, you're just saying the quiet part really, really out loud in front of a bunch of journalists, no less.

14:31So I think that is the sort of thinking, if you want to call it that, that's going on with regard to, you know, something so blatantly unconstitutional. And you know it is hasn't clearly been passed through any lawyer's desk. Right. No lawyers put eyes on that. I think he took some people in his administration by surprise. And of course, then they'll go out and defend it. Because, you know, you shouldn't be allowed in a free country to report the news as you see it based on your reporting. It's just such an astoundingly backwards statement. And it's indefensible, but they will defend it. No other administration has done this.

15:12But has any other administration come close or, you know, tried to restrain the press as much as Trump has? I mean, it's a broad historical question, right? So as people will point out when they write about these things, no president loves the press. All presidents chafe at negative coverage. They all complain about the press. But I think that's where the separation begins, right? Complaining about the press is something Trump has every right to do. And he does it all the time, using the levers of government to punish press because specifically you don't like their coverage. So this is not like a national security case.

15:53This is not a wartime dissent is hurting America type situation. This is just a blatant viewpoint based discrimination. And I'm not aware of any president in the history of the United States that's taken that sort of measure. Surely there were presidents who wanted to. Richard Nixon comes to mind, but he was constrained in ways that Trump isn't, both internally by his own White House counsel and, of course, externally by members of Congress who didn't support everything he wanted to do. So he had his enemies list and clearly was engaged in, you know, some surveillance of the press and harassment of the press.

16:31But as with other things, Trump just takes it, you know, four steps further. And there really isn't, I think, a historical analog in this country, I should note. I'm also curious why he picked those particular outlets and didn't also ban the, you know, the New York Times. Well, he said more to come. True. So it's not clear there won't be more on the list by the time the list is compiled. But of course, he's simultaneously appalled at the New York Times coverage, but happy to pick up the phone and try to manipulate that coverage. So, yeah, I'm not convinced those are the only outlets that will come in for this sort of treatment or some other petty, vindictive limitation on their coverage.

17:16And, you know, he's sort of at war with the New York Times in the Pentagon case. case. They're the ones who stepped up, I think solely. The Pentagon Press Corps walked out. But in terms of filing a lawsuit, I think it's the New York Times that stood alone with support, but as a plaintiff in the lawsuit. So yeah, there are plenty of outlets that he doesn't like. I'm sure he would prefer to have a press briefing room full of Laura Loomers and other people who just, you know, lob sycophantic softballs up to him and he knocks them out of the park or he thinks he does. That's not a functioning free press.

17:51That's not democracy. I think they know better. But for reasons we've discussed, they're doing this anyway. This is also reminiscent of what happened during the first administration with then-CNN reporter Jim Acosta. He won his case, too, when they decredentialed him. Because the president didn't like the way he asked questions and the questions he asked in terms of their content, He won his case not on First Amendment grounds, but due process grounds. Yeah, the D.C. Circuit has very strong free press law on these sorts of, you know, decredentialing and exclusionary policies. So it's true that in the AP case, a divided panel granted a stay to the government.

18:33I don't know that that's going to survive on appeal. As I said, it's a little bit nuanced when you talk about spaces like the Oval and Air Force One. You know, one can imagine saying, well, presidents certainly have more authority to sort of screen who gets in there. But, you know, some of what the D.C. Circuit wrote, I thought was a little bit weird. So they said, for example, just being in the Oval and photographing or recording is not news creation. It's not an exercise of the press rights. And I'm like, well, but without that, presumably because they're not commenting on it in real time, but they're informing people of what's going on.

19:14So that's a tougher case. That made it into my book. Well, that was also a split decision with two Trump appointees in the majority. But as I said, you could dress that up in a public forum, you know, nuanced First Amendment argument, which they did. And public forum doctrine is its own sort of manipulable doctrine. And you could you could make a plausible case on some level. but just to ban specific media institutions and then say, well, because they don't write things I like, essentially, it's just giving away the whole thing. The judge is moving fast because a hearing has been scheduled for Wednesday.

19:56So we'll learn more at that time. Thanks so much, Tim. That's Professor Timothy Zick of William and Mary Law School. Quick one before you jump back in. You're listening for ways to help teams move faster, make sharper decisions, and turn scattered context into work they can use. ChatGPT for Business can help. ChatGPT for Business gives teams a shared workspace with admin controls, permissions, and access to work and codecs in ChatGPT. This means your business can move from question to answer and code to rollout quicker. Join over 10 million business and enterprise users worldwide already using ChatGPT for Work.

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22:26Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. Turning now to an ice shooting in Texas this weekend. No more traffic stops by ice. No more. No more. No more. Not one more. Ice does not know how to conduct traffic stops safely. An attorney for the Venezuelan man shot in Austin, Texas on Sunday during an ICE operation spoke out today saying the DoorDash driver's vehicle was sideswiped by an unmarked vehicle before he was shot and pulled out of his car. The Department of Homeland Security has released very little information about the case, saying only that it was investigating the shooting of a Venezuelan man in the U.S.

23:20illegally who had a final order of removal. At least four people have been fatally shot by ICE agents during immigration enforcement operations this year alone. Joining me is immigration attorney Leon Fresco, a partner at Holland & Knight. Leon, Austin officials say they don't want ICE investigating ICE. But is that what always happens with these ICE shootings? Well, here's the issue. When there is an allegation that a federal officer broke the law in administering federal law, typically, if everyone trusted the mechanisms and the infrastructure of the law in place, typically you would have the FBI be the one that investigate this along with the U.S.

24:11Attorney's Office and perhaps the Inspector General's Office at that particular agency. And that's always been the way. The problem is that the local officials in a lot of these jurisdictions, and now Austin is a new one, do not trust that that traditional infrastructure of federal officers investigating other federal officers administering federal law will actually lead to an outcome that is a non-biased outcome that is the correct outcome if, let's say, an AI were doing the investigation. And so from that standpoint, they want to engage in their own investigation. The problem is that their jurisdiction is very limited.

24:55They can only prosecute a federal officer if essentially he committed cold-blooded murder. So, for instance, he went into a 7-Eleven and just decided to just randomly shoot the store clerk and steal a Slurpee. And that had nothing to do with his performance of ICE duties. But if he was in the middle of performance of his ICE duties, the level of immunity is so high that it's very, very difficult for these local officials to actually prosecute a federal official for the crime. which is why in Minnesota you had that issue where the prosecution ended up being a federal prosecution for a lie because that was the easiest thing to actually prosecute the person for rather than for the shooting that took place in the call of duty.

25:42And so from that standpoint, I understand a lot of the political posturing that takes place here, but ideally the way you would want this to work is for the Office of Inspector General of the Department of Homeland Security to team up with the U.S. Attorney's Office and the FBI to conduct a good faith investigation of the facts of this case. Leon, we've talked about this before. Police are told they can't shoot into cars because of the dangers that can pose to the public unless their own lives are at risk. Why doesn't ICE have a rule like that? This man reportedly didn't have a criminal record.

26:19Yeah, well, I mean, there's a couple of steps here. So the first step is absolutely you are correct, that unless an officer's life is in imminent danger, the ICE officer should not be shooting into the car of the person that they're trying to apprehend to place them into detention and removal. That's 100 % true. So the first threshold question is, does the officer have some basis to believe that they are in imminent danger. Maybe the car is running right into them or something, who knows, and that the shooting is the only way to prevent this imminent danger from inflicting bodily injury to them.

26:56So we don't know that. We'd have to check the video. We'd have to check any witness accounts. The one thing that is different in this case that I think is fascinating for your listeners is unlike a lot of the other basically random events where i sort of you know has suspicion that someone is here illegally and is pulling them over and people are being scared etc here apparently now they are employing license plate identification technology where the license plate actually is triggered and linked already with the ai to an order final order of removal such that ICE knows that the individual with this license plate has a final order of removal.

27:39And hence, ICE is saying once you have that final order of removal, that final order of removal is essentially the judicial warrant that allows them to enter either the house or the person's car in order to get them arrested and place them in detention. And so that is new to the extent that ICE can say we actually knew that this individual, Wilbur Rafael Garces Perez, had a final order of removals. But nevertheless, that does not justify a shooting in any scenario unless the agent thought that they were an imminent threat of bodily harm. Coming up next, what happens at the airport when a border agent wants to look at your phone?