The White House Has A Whole Lot Of Talking Points And Not A Lot Of Case Law

The White House spent the first two days of this week explaining why banning three news organizations from the building isn’t a First Amendment problem. This afternoon, it has to explain that to a federal judge instead.

MS NOW got the talking points the White House sent out after Trump announced the ban on Friday, and it’s some eyebrow raising stuff. The first is about transparency. “No President has been more transparent or offered more of his time to the press,” it states. “In addition to working around the clock to serve the American people, President Trump also makes time to bring them into the conversation and answer reporters’ questions.” Um, okay? This doesn’t answer — or even try to answer — any of the constitutional concerns, but, you know, makes a cute sound bite, I guess?

The second one at least tries the law. “The First Amendment protects their right to publish; it does not entitle certain outlets and members of the press to a hard pass, briefing room seat, or place in the press pool.” Note the lack of mention of the due process end of the equation.

And then there’s the one Alicia Menendez read on the air Tuesday, “Fabricating facts or reporting verifiable falsehoods from inside the White House complex is an intentional breach of professional decorum, and it is severely disruptive to the mission and purpose of the White House.”

Hold onto that one, because it graduated from talking point to part of the briefing.

DOJ senior counsel Michael Velchik filed the administration’s opposition on Tuesday, and the brief runs the same script. The outlets, it says, failed to maintain basic minimum “standards of professionalism and decorum” and have been “trafficking in verifiable falsehoods about national security and other issues.” Access to the White House, Velchik wrote, “is a privilege — not a right.” The national security harm, per the filing, includes reporting on depleted munitions, the Iran war negotiations, East Wing renovation security, and a Politico story about the Republicans’ midterm convention in Dallas. The White House also posted the whole argument on its own website under the headline “White House Access Is a Privilege — Not a Right.”

This reads a lot like what happens when you announce a policy on Friday and go looking for the legal justification on Monday. Because the legal precedent is clear: once the White House opens its facilities to the press generally — the briefing room, for instance — it can’t pick and choose among journalists based on what they publish. And it can’t yank a pass without notice, a chance to respond, and a written explanation.

The surrogates aren’t running a tighter operation. JD Vance insisted Monday that the media blockage is “not a ban,” which would be a stronger point if the President hadn’t written on Truth Social, “I am proud to announce that, effective immediately, I am banning Fake News CNN, MSNOW … and Politico.”

Which brings us to the hearing. The case landed in front of U.S. District Judge Timothy Kelly, a Trump appointee, and if that name sounds familiar it’s because he is the same judge who ordered the White House to give Jim Acosta his hard pass back in 2018, on the due process point, three days after CNN and the Gibson Dunn team now handling this case filed their motion. The administration is asking him to reach the opposite result on a record that includes the President saying out loud that he did it because he didn’t like the coverage.

That’s an uphill battle for an administration without a legal argument to stand on. We’ll see this afternoon whether Judge Kelly is amused by the talking points.

Earlier: Trump Banned Three News Outlets And Handed Gibson Dunn A Sequel It Already Knows How To Win
The DOJ Is Coming For Reporters. Todd Blanche Just Said So Out Loud.
DHS Is Hunting Down Trump Critics. The ‘Free Speech’ Warriors Are Mighty Quiet.
Trump Admits: ‘We Took The Freedom Of Speech Away’