| Donald Trump’s battle with the White House press corps will move into its next phase today when the judge presiding over the case filed by MS NOW, CNN, and Politico issues a ruling on the outlets’ motion for a preliminary injunction. The outcome is mostly predictable — with one major variable — and the case is likely to head up quickly to the D.C. Circuit Court of Appeals. |
| The presiding judge has signaled that he will extend the temporary order that he issued about two weeks ago requiring the White House to reinstate hard passes for the affected reporters, but that order came with a significant hole: The White House was still able to exclude outlets from the Oval Office and Air Force One on the theory that these are the president’s “private spaces” and that he should therefore be free to do so for any reason, including the content of their coverage. |
| If the judge’s ruling today takes the same approach, it is possible that both sides will appeal the decision. The administration wants to be able to exclude White House reporters from the grounds for any reason, even in the press spaces, so it is likely to argue that the ruling goes too far. The outlets may want to press the point about access to the so-called “private spaces,” so they may argue that the ruling doesn’t go far enough. |
| On the merits, this is a fight worth having. The distinction between public and “private spaces” at the White House was created last year by two Trump appointees on the D.C. Circuit in the litigation over the White House’s ban of the Associated Press, and it has not held up well. |
| For one thing, these are not the president’s “private spaces.” They are public spaces temporarily occupied by Trump and his White House team. |
| The other, more significant issue is that the Trump administration has gamed this distinction. Trump could walk down the hall from the Oval Office anytime he wants to take questions, but instead he shuffles people in and out of the Oval, where he knows he can control who is there. |
| If these were truly impromptu and ad hoc sessions, that would be one thing, but we are at the point where this is now the president’s main forum for communicating with the press. Trump has converted the Oval Office into an auxiliary press briefing room, and the courts should treat it that way. If that means, for instance, that the White House has to conduct a public lottery to figure out which media outlets get to go into the Oval Office on any particular day, then so be it. (They could avoid that headache by simply using the briefing room.) |
| Meanwhile, the Trump administration has opened a new front in its battle with the White House press corps: The Justice Department is now investigating whether the major TV networks violated federal antitrust law when they suspended pool coverage in response to the White House’s exclusion of CNN several weeks ago. |
| The idea is laughable for several reasons, not the least of which is that this administration does not particularly care about antitrust enforcement. As a legal matter, this was not a boycott of a business activity or commercial service. It was done to register the networks’ objection to the administration’s policy decision — antitrust law does not prevent coordinated efforts to lobby the government for policy changes — and there was no anticompetitive effect or intent. |
| If anything, it is the government’s investigation of the networks that is unlawful. The Trump administration appears to have launched the inquiry in retaliation for the networks’ handling of pool coverage, but pool coverage is itself journalistic and expressive activity. That does not mean that the networks can do whatever they want, but it does mean that the government cannot retaliate against them based solely on their First Amendment-protected activity. |
