| President Trump’s decision to ban MS NOW, CNN, and Politico from the White House is several things at once — an affront to the First Amendment, the sign of a desperate and failing president, and an effort to throw some red meat to Republicans in the run-up to a potential Democratic wave election. |
| Trump’s effort is worthy of the widespread condemnation that it has already received, but it also will not work. |
| That is true for both legal reasons and practical reasons. The outlets filed a lawsuit in Washington, D.C., this morning, and they will likely recover some — though not all — of their access to the White House. The ban will not work as a practical matter either, because the best White House reporters at these outlets do not have to be there to do their reporting. |
| In the process of failing, the Trump administration is going to waste a whole bunch more taxpayer money trying to keep the outlets from reporting on what’s happening in and around the White House. |
| Before we go forward, several quick disclosures: (1) I used to work at Politico, left for reasons broadly described here, and regularly appear on both MS NOW and CNN; (2) I’m friendly with reporters, editors, and producers at all three places, as well as members of the official White House press corps at various outlets; and (3) I attended last year’s White House Correspondents’ Dinner, though I am not (and have never been) part of the official White House press corps. |
| This morning, MS NOW, CNN, and Politico announced that they would quickly seek a temporary restraining order requiring the White House to let them back in while the case proceeds. Their complaint is here, and the companies are represented by Gibson Dunn’s Ted Boutrous, one of the most prominent litigators in the country and a specialist in First Amendment cases. |
| There will be some briefing and perhaps a hearing, but the presiding judge should grant the companies’ request for immediate reentry based on the court rulings that followed Trump’s ban of the Associated Press last year. |
| That case is technically still pending, but long story short: A panel of three judges on the D.C. Circuit Court of Appeals ruled on an interim basis that Trump had to allow the AP into the briefing room and the East Room because those spaces are open to the press generally. |
| The panel allowed the White House to continue to exclude the AP from the president’s “private spaces,” including the Oval Office, Air Force One, and Mar-a-Lago. The theory is that because the public is not generally allowed into these areas, the president is free to exclude members of the press based on their (supposed) viewpoints. |
| The panel’s ruling was issued by two Trump appointees over the dissent of a third judge, but the full court declined to reconsider it. As a result, we should expect this case to shake out the same way over the near- to mid-term, even though the case may take a couple of years to reach a final resolution on the merits. |
| That’s the law, but as a practical matter, Trump’s ban will not achieve his objectives either. |
| For starters, he may cave. The other TV networks — including Fox News — just announced that they are suspending their television pool coverage of the president. Print outlets and photographers will still do pool coverage, but Trump is obsessed with television and is probably going to be very unhappy about this. |
| On top of that, the best reporters who cover the White House do not need regular access to the facility because they can use their phones to communicate with their sources and meet them offsite. Trump knows this as well as anyone, because he is infamous for talking with reporters on the phone. |
| You also don’t need to be at the White House to produce important coverage about the administration. This morning, multiple news outlets published disturbing stories about the administration’s “third country” deportation deals, which last week were ruled illegal by a federal appeals court. This is an offensive and inhumane policy worthy of critical coverage, and so far as I can tell, no one had to set foot in the White House to produce it. |
| To be sure, this White House makes plenty of “news” in the Oval Office and on Air Force One when Trump takes questions from reporters, but that is not because the things that he says are true, sensible, or well-considered. To the contrary, it’s mostly because the things that he says are false, offensive, or ill-considered. |
| There is legitimate value to that reporting. Trump runs the executive branch, after all, so his thoughts and actions — however misguided or unmoored from reality — are worthy of coverage and give us insight into the workings of the government. That coverage has also allowed the press and the public to track Trump’s visible cognitive decline over the years and the potential health problems he has that the White House will not disclose to the public. The fact that Trump takes questions in the White House on camera also gives the television networks video to run on air. |
| Still, it’s helpful to put this coverage in the broader context of the Trump White House. |
| For one thing, Trump and his senior officials have aggressively manipulated the flow of information by credentialing people (I would not call them “reporters”) from partisan media outlets that support the administration and by calling on them for questions in the White House. |
| Last week, when Attorney General Todd Blanche served as the White House’s official spokesperson, he mostly called on people from conservative media outlets, who asked incredibly bad questions. Someone from the Daily Wire asked whether the administration would deport Democratic congresswoman Ilhan Omar. Someone from Lindell TV asked Blanche what the administration was going to do to help the Jan. 6 “political prisoners.” Reporters from the New York Times and the Washington Post were in the front row but got no questions. |
| Blanche’s appearance was noteworthy, but it wasn’t because he was providing accurate and useful insights into the Justice Department’s work. It was because he misrepresented facts, spouted junk statistics, and engaged in more partisan hackery. You did not need to be on site — asking questions or otherwise inadvertently serving as a prop — to explain this to people. |
| This is not to dismiss the serious risks here. The real members of the White House press corps should be worried about the precedent that Trump’s ban sets and the possibility that the same thing could happen to them if they upset the administration. Indeed, intimidating other members of the press is almost certainly one of Trump’s objectives. |
| But if you are concerned about the collapse of newsgathering at the affected outlets, there is less to be worried about than you may think. |
| The ultimate futility of Trump’s effort here is, however, notable in and of itself. Trump is not only attempting to impede the affected outlets’ newsgathering operations; he is also imposing costs on them both financially and in the form of time that executives have to devote to addressing the issue in and out of court. |
| Meanwhile, you can expect the Trump Justice Department to mount an aggressive defense on behalf of the White House. If history is any guide, that defense should fail — largely if not entirely — but it will probably involve lots of factual misrepresentations and partisan talking points. |
| Unfortunately, the American taxpayers will be footing the bill for this. |
