Judge Skeptical of Trump Press Ban

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1:11A Trump-appointed judge pressed the White House in what is now this first court review this afternoon of the unprecedented effort to target and retaliate against particular outlets. Today's hearing was as unusual as the united front by these competing news organizations like CNN and this network, MSNOW, along with Politico, joining together in a suit to try to stop the White House from barring them from reporting from the entire White House. Now, top headline, you may have heard, the suit argues that Trump's new ban is unlawful for several reasons, more than one reason that it could fail. And I'll report those out tonight.

1:52I also want to mention to you as we do this reporting that this case, of course, involves the press, including this network. And our press coverage tonight will be about the case. It is not offered on behalf of one party, even as we remind and disclose that we are involved. and will report on both sides of this suit as we would any other court case. We have, of course, the motions from the government and the plaintiff's challenging this, which include MS Now. And we will continue to report out this lawsuit wherever it goes. And of course, whomever wins. Now, today, the judge did suggest the White House is in one sense already behind because one of the challenges by these news organizations is based on due process.

2:36That means even apart from the big First Amendment speech concerns, which I'll get to in a second, on due process, I can report for you where the Trump folks, the White House folks ran into trouble or turbulence in court because the judge noted that the White House already has kind of blown it. I will read you the quote. Judge Kelly saying it's fair to say that process wasn't followed here. Well, that process is required. That's one of the challenges. So the ban could be narrowed or stopped on that ground alone. Now, these lawsuits also push that more core constitutional attack. It alleges that Trump's ban retaliates against journalists and targets speech by viewpoint, which, if proven, is a direct assault on the First Amendment, the news organizations argue.

3:27Now, either of those claims are fatal to the ban if proven true in court. For its side, the White House defends the ban as something they argue is really more ordinary, that the government can issue or change standards for which journalists are let in, that it can defend U.S. national security with an eye on the press coverage. Now, what you're looking at are some pretty kind of generic letters. And that's important. I'm going to leave this on the screen for a sec. You can even see the colloquial style in the upper left. Dear CNN, dear MSNOW, this is the process that the White House is defending.

4:03So again, this matters. There's whether you follow the legally required process, and then there's what you're saying. These letters might be a problem for the White House because they're generic. They're vague. As you see, they don't have a letterhead. They didn't even have signature. The news outlets are challenging them as kind of after the fact and that that is not even close to conforming to due process. And due process aren't just words. This is actual legal requirements. I can tell you tonight the national security claims by the White House would be hard to prove given the precedence we have.

4:35Now, as I said, we'll follow the case wherever it goes. And the Supreme Court can and may change precedent. But current law on national security, the Supreme Court famously rejected what were more serious, stronger attacks on intelligence reporting and limiting it, attempted by President Nixon. That's kind of the core of government First Amendment battles, and it went all the way to the Supreme Court, and the government lost. Now, the Trump administration also makes a claim. They say access to the White House is a privilege, not a right. And the answer to that is not so fast. Because that's actually not what current law or precedent says with regard to journalists who've already been admitted to neutral forums on government property.

5:20A judge this second term of the Trump administration, that's very fresh law, if you will, current precedent, limited Trump's efforts to curb the AP's access to certain parts of the White House after Trump tried to bar them. Noting that once this White House, like any White House, opens its doors to some journalists, It cannot then shut those doors to others, other journalists, quote, because of their viewpoints. Now, an appeals court in that case did allow the Trump administration one limit, which was that it could limit the AP's access to certain restricted areas. For example, like the president working in the Oval Office.

5:57And this is where it can get a little arcane. But basically, that's not an open ended forum, say, like the press room, the briefing room. And it's a place where, in a very real sense, the president admits certain people is doing work and doesn't typically let in everybody. So you now have the question of who do they let in, like the pool reporters. I should mention that litigation is ongoing, but its core holding right now is that journalists, once let into the general areas, cannot be kicked out because of what they say and do protected by the First Amendment. So that precedent suggests that this White House or any future one can't do what Trump is currently trying to do, target reporters to ban them from the whole premises.

6:39I mentioned that standards debate, and I told you we would report this out. So I just want to explain those details get a little murkier for the White House defense because they say they're changing the standards or applying them. that Trump concluded that three outlets failed to maintain what the White House, the government views as the standards of professionalism, publishing sensitive or classified information. Now, as I just reminded you, even in national security, you can usually publish most classified information, the Pentagon Papers case. But it gets worse for the government. Politico notes that in those letters that I mentioned, the kind of vague ones, they don't claim any of the cited sources even contain classified information, sort of taking that defense off the table.

7:18and that some of the examples don't appear to have any national security nexus at all. And it gets worse for the government. Politico noting that its coverage at issue here was reporting on the negative vibes at the midterm convention. The news outlets argue this isn't national security at all. This is about Trump wanting to attack First Amendment freedom. Now that's a lot of what's in the case. And as I said, I've tried to show you both sides and the recent precedent so you can keep an eye on what is a very unusual week in America, one where multiple news outlets that normally compete with each other have united in court and where a president literally admits the thing that usually every politician denies even when they're doing it.

8:06So that's the law and the substance, if you will. I would be remiss, as we say, if I didn't also report for you on some of the odd consequences that seem to have sort of backfired on our TV-obsessed president. Because the TV networks, including Fox, view the ban as illegitimate and therefore are refusing to continue the group pool coverage, which is not something that's usually in the news, but it's how we show you all those videos and footage. we take turns. And so they're refusing to continue to do that while Trump tries to divide and conquer the press. I will note that is a different, you could argue, stronger response than some of these big companies and law firms, how they responded when they were being attacked and picked at by the government in the beginning of this term.

8:50Washington Post reports Trump is deprived of the thing he craves most, attention on TV. The New York Times says after years of the star of must-see TV, Trump faces the sting of cancelation. How ironic, then, that this PR maven, this political strategist and tactician, uncourt the very changes that deny him the press coverage he covets at this crucial time. This isn't some middle-of-the-summer little sideshow. This is the midterm homestretch and things going on at the UN and on the world stage, which we will also get to tonight. But as for that sort of hoisting on one's proverbial PR petard, the late-night comics mocking how the ban has backfired.

9:35You know, one year ago, tomorrow, we came back from when they bullied us off the air. That was a year ago. Never did I imagine that 12 months later, Trump would do the same thing to himself.

9:49Yeah, apparently he forgot the press pool is also who brings the microphones. And right now, thanks to his own dumb actions, the only camera at the White House is the ring camera Melania had mounted on her bedroom door to keep them out of it.

10:11That's the humor of it. And humor and culture is part of how people experience this. People like Jimmy Kimmel, who fought and won so far. People like Stephen Colbert, who did reach the end of his contract but faced that clash. They are the embodiment of the actual free speech resistance to a politician, a government, a federal overreach that would try to tell you what jokes you can hear, what you can watch. That's sort of the cultural side. There's also the politics of this. Cancel culture, Donald Trump being the biggest cancel culture First Amendment abusing president ever, according to many of these filings, is unpopular on the right and the left and the middle.

10:53We have a First Amendment for a reason, but the serious part beyond the jokes and the references is, the reason is exactly stuff like this. This can happen here. It is happening here. And the founders were concerned that despots or would-be despots would do exactly what is trying to be done tonight. First Amendment is very clear and it was put first for a reason as a precursor to the kind of discourse and fact-finding we would need in any working democracy. It means very simply neither Congress nor the White House can act to abridge the freedom of speech or of the press. It is a testament to the First Amendment of the Constitution that something this bad and extreme, a confessed press ban, the president admits, has actually happened somewhat rarely in our modern life because the system has worked.

11:48And we will see today from this court hearing, from the filings I told you, as well as our obligation to report on what the government says, even if we are in a legal battle over our rights, All of this is now being tested in real time before you. Democracy remains a participatory sport. With that in mind, I want to bring in Emily Bazelon, New York Times Magazine legal staff writer, Christine Todd Whitman, governor of New Jersey, extensive experience, including in Republican administrations, although you've been very outspoken about many of these issues. Emily, I will start with you. What do you see coming out of that hearing today?

12:26I see a skeptical judge, a judge that's skeptical of the White House justifications for this ban. I mean, first of all, as you laid out so nicely, there was no due process before these reporters were kicked out and had their press passes confiscated. And then there are these larger constitutional questions about this basic principle. Can the president punish particular news outlets because he just doesn't like their coverage? He thinks it's negative. And I think in this forum of the press office at the White House, the office, the answer is clearly no. And we're going to find that out from this judge.

13:04Yeah, and Governor, as I mentioned, you've been very thoughtful about this. You don't come to this as a longtime liberal Democrat, but someone who cares about the country. I want to play the president admitting the thing that usually you have to prove in First Amendment litigation, which I used to do in court. Sometimes you have what we call bad facts. It looks bad, but you can't really get the government leaders on admitting anything. So you have to convince the court it was retaliation. Here, he calls it a press ban, and he says he's retaliating. He doesn't like the coverage. Take a look. On the three news outlets, sir, what does that mean in practice?

13:41Are you taking away their banters? Are you banning them from the pool? Are you banning them to the whole office? What does that mean? I still don't know what that is. What do you do from the banter for the press? It's a media outlet. Oh, the ban on the free press, right? 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. And I mean, it's absolutely play by play from the playbook of any authoritarian leader. I mean, it's the first thing that they go after is the freedom of the press. If you can stop people from getting the real news, getting the information, you're way ahead of the game.

14:22If you can control what people are hearing, where they're hearing it, how they're hearing it, we're in a very dangerous place if this goes forward. And we should be concerned that we have a president who feels that way. I mean, he's so sensitive. You can't say anything negative. It's got to be exactly the way he wants it said. You can't even use your own terminology to describe, even if you're doing something that, you know, saying, yeah, this was okay, what you did. If you don't say it the way he wants it said, it's no good. And that does not put us in a good place in this country. Yeah. And as I mentioned, this is not a drill.

14:57This is happening. Right. And he is seeing how far he can get. And this is before the midterms. The lame duck, which we're covering later tonight, there's a lot of signs that his power is waning, but that doesn't mean he won't take more desperate measures to see what he can get away with. President Obama, who's very circumspect in general, saying this. The free press, the idea that

15:24the government cannot

15:29discriminate against or pick on or bully or exclude somebody because they don't like the criticism that's being leveled at them. That is a foundational issue. I am not surprised that the current president wants to ban

15:55newscasts that are critical of him? Because he's that guy. Well, I have to say, all of us have had moments when you're in the public eye where you would like to get rid of the press. You're speaking on your side in government, and you were in the Bush administration. I mean, you get that, but... Feeling that way, but knowing there's a rule. There's a rule. And you'd have to take that's part of life in the public sector. You have to accept the good with the bad. You own it. This is a constitutional issue of extreme importance. And that's why I'm working so hard with the forward party to get people elected to office who are going to just stand up and do what's right and have pledged to respect the Constitution and the rule of law.

16:35We need that kind of representation in Washington, not people who just represent a party or are scared to death of the president because he'll take away their position or their power. And it's very serious. Yeah. Emily, can we go a little deeper on recent precedent jurisprudence? I feel like you're always ready to do that. Let's take the court seriously. what might seem like a ploy or a technicality that the White House, and for folks who haven't ever been in there, I've been there for reporting, it's so much smaller, it was built a long time ago, people don't always see it that way. The technicality was that in the AP case, they said, well, yeah, if you're in the room with the big desk and you already limited how many people can go in there, then you have a little more sway, a little more of a defense against retaliation arguments to limit it.

17:26A government that wanted to have better odds of winning this case would have started there on that narrow AP precedent instead of going supersized where any competent White House counsel would have a duty to tell the president, hey, if you go this big, it's riskier. And I want to draw one more point on that and then get your response. At the very end of the government filing from the White House, they say if they are starting to lose, any remedy should be limited. And they say, citing the AP case, White House officials can deny access to Air Force One and the president's home in Mar-a-Lago, right?

18:09Mar-a-Lago, Emily, being a mixed-use place at best. What does it tell you or how do you read the fact that rather than any lawyer strategy to win here, they seem to just want to court this giant clash that is more likely potentially to lose? Yeah, I think President Trump got mad and made an impulsive decision because his own press office was not ready for this. There was lots of reporting that they were caught flat footed and weren't actually immediately ready to enforce this ban. So I don't think that Trump was thinking through the kind of legal strategies. There is, though, a question about this ruling from the D.C.

18:49Circuit that you described, which suggested that AP could be prevented from entering the Oval Office. I'm not a big fan of that ruling because I think it creates a lot of confusion about where the boundaries are. And that's what you're seeing the Justice Department argue. Well, if it seems like the D.C. Circuit thinks that they can prevent an AP reporter from being in the Oval Office, then what about keeping these three news outlets out of Air Force One and out of Mar-a-Lago? And you can see a kind of slippery slope there. I still think that the White House press office is really different. And actually, the District of Columbia Circuit said that.

19:30They said we are not talking about this particular non-public forum that the government created by opening this office. But I think it's just a bad idea to be letting the president and the White House play around with a flat out ban of an outlet as opposed to, OK, today I'm not having you come into the Oval Office because somebody else is interviewing me. That seems fine. Whereas this flat out ban, I think, is a problem. Right. And all precedent that we have suggests it's a problem. And the way they're pursuing it suggests they just want to see what they can get away with. As I mentioned, it's for those following along.

20:08It's page 17 or their thing where some lawyer, maybe because they don't think the client will get this far in the ruling. So who knows if he's watching the station he wants to ban from the White House or not. Just doing my job. But if he does, this suggests some lawyer going, well, we might lose on this. And then let's try to lean on that other case and do what we might call a selective geographic ban, which I thought, again, just speaks to sort of the hash of it. As you said, he didn't even have his own people ready to enforce this the day it came out. There's a lot of problems in here, including first and foremost, whether this is constitutional.

20:43Emily Bazelon and Christine Todd Whitman, my thanks to both of you. We have our shortest break, 90 seconds, and then on this same big story, the former chief of the Washington Post, Marty Barron, when we're back.

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22:29We're joined now by Marty Barron, former executive editor of The Washington Post. your thoughts on the point we are at, the escalation of Donald Trump trying to actually ban entire outlets from the entire White House grounds, compared to what we've seen thus far in the second term for press freedom? Well, I think it's an extraordinary moment, obviously, and a violation of the Constitution, the First Amendment, as you've articulated so far in the program. Look, I mean, this administration trots out the national security argument every opportunity it gets whenever it's challenged on anything. I trotted out the national security argument when it was challenged on the ballroom.

23:07First, it said it was to welcome guests, and then they said it was a national security installation. Same thing with this gigantic Arc de Triomphe that they want to build in Washington. It was just supposed to be a memorial, and then it becomes a national security installation. Same thing at the Pentagon, where all of a sudden they're declaring that there's a national security risk for having journalists there who don't sort of utter the propaganda of the Defense Department. And now they've trotted out the same argument here with regard to the White House, where clearly there was no national security problem before, but they'd claim one now.

23:45Obviously, it looks like they just make up these things as they go on. You've faced some of this, and we've had these conversations. This is clearly a whole other step. Even though some people in America may watch and say, well, I have to rely on the news to tell me this is a big deal when they're under attack. But of course, that's what we've seen in history and in other countries. It is precisely an effort to turn independent reporting, free speech into a combatant. Even if, say, take me out of it, take MSNOW out of it. If Politico doesn't want to be a combatant, they just want to show up and do reporting.

24:23But now they have to sue to vindicate their rights. So I'm curious if you could speak to all that, as well as a point raised in the filings that I didn't get to yet tonight, which is the president banned, they say, CNN, MS, down, Politico, for the improper purpose of retaliating against them, that's the plaintiffs, for past news coverage because he deemed it negative. And then, and this is the key, chilling future reporting about him. That however sloppy this may have been, it is still the illicit goal of the government to chill, distort, stop, or corrupt future independent reporting, even by outlets that were not targeted.