50 Days of Trump II - Inside A Free Press Battle Between The AP & The White House
In today’s Watt Watch we are going to explore the history of the White House Press Pool, two previous WH press suits from Trump I, and the implications of censorial control against the AP.
Today marks 50 days into Donald Trump’s second term as President of the United States. In today’s Watt Watch we are going to explore the history of the White House Press Pool, two previous WH press suits from Trump I, and the implications of censorial control in the wake of the Associated Press being banned from the Oval Office.
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On a hot summer day in July, an assailant shot two bullets toward the President. The first grazed him while the second hit its mark in his back. President James Garfield was mortally wounded and later remarked to a doctor assisting him “Thank you doctor, but I am a dead man.” Garfield would later die on September 19th, 1881. In the two intermediate months, journalists stood watch to report on the President’s health and the origins of the White House Press Pool began.
Dr. Martha Joynt Kumar described the “body watch” of President Garfield in her extensive 2017 paper entitled The Origins Of The White House Beat.
The president’s private secretary, Joe Brown, established the rules governing reporters’ conduct. Coverage was on a 24-hour basis. “After five p.m. the press left one representative, to send out bulletins every other hour through the night.” The person who frequently had the task of night duty was the head of the Washington bureau of the National Associated Press, Franklin Hathaway Trusdell. In a letter to his wife, Trusdell described how close he was to the wounded president: “As I sit here now [the house] is quiet as death.” He continued: “I listen to every sound. A dog barking in the distance is heard. A fountain splashes on the lawn. Not a step is heard in the mansion. The President sleeps.” Reporters were at the heart of the national vigil marking the president’s every turn. And they did so from a vantage point close to him and his staff. While the event was clearly an extraordinary one, the presence of the reporters was viewed as a natural part of the need to regularly inform the public of the president’s condition. With this event, an important precedent was established. (pg 13)
The White House Press Pool would grow out of two necessities being the demand for information and the constraints of reporting on the President. President McKinley was so inundated with those seeking coverage on a 1901 trip to the West that the White House “limited press participation to three wire services, three Washington newspapers, and three news magazines” (pg 16). There just was not enough room on the train so the press took on a collective role to serve the needs for the people. The White House understood the importance and value of the Press.
In an instance that won the hearts of his press followers, President McKinley refused to enter the Vanderbilt mansion, the Biltmore, in Asheville, North Carolina, when the superintendent indicated reporters were not welcome. “The President courteously returned the answer that the newspaper correspondents were his guests, and that, unless they should accompany him, he would be unable to make his promised visit,”...The president then insisted that newsmen accompany him, which they did. (pg 16)
One hundred and forty four years later the Oval Office door was closed to the Associated Press. The Associated Press was formally removed from the Press Pool by the White House.
The later legal complaint filed by the AP explains the sequence of events that took place. A month ago on Tuesday, February 11th
[President Trump’s] White House Press Secretary Karoline Leavitt summoned AP Chief White House Correspondent Zeke Miller to her office. She told him that, at President Trump’s direction, the AP would no longer be permitted in the Oval Office as part of the press pool until and unless AP revised its Stylebook to refer to the body of water known for hundreds of years as the Gulf of Mexico as the Gulf of America. Leavitt provided no other reason for the decision other than to compel the AP to change the language of its reporting, nor did she object to any particular conduct by Miller or any other AP journalist. (pg 8-9)
Leavitt referred to President Trump’s Executive Order 14172 which requested the appropriate agency rename Mount Denali back to Mount McKinley (yes the one in the same from above) and change the name of the Gulf of Mexico to the Gulf of America. Still to this day I have not read any meaningful reporting on why either name change has a significant material impact on the American people. Often lost in the reporting however is the fact that the AP “would follow the name change” for Mount McKinley because it was a geographic entity entirely within the territorial United States (pg 9). The AP chose not to recognize the name change for the Gulf of America because portions of the Gulf were outside US territorial waters and the resulting change could cause international confusion. These were two understandable and justifiable reasons to explain their choice. As they point out in their suit the AP was not the only pool party member to keep this standard but they were the one targeted. The WH offered its reasoning plain and clear.
[T]he White House’s “view as to why we arrived in this point” is that “the influence” the AP’s “Stylebook has acquired has been misused, and at times weaponized, to push a divisive and partisan agenda.” Wiles further stated that, as to the Gulf of Mexico specifically, White House officials “of course[] recognize that this renaming may not formally apply yet internationally,” but Wiles nevertheless insisted that “given the AP’s role, it should also appropriately make the distinction as an American guideline.” (pg 12)
The AP, just like it has since 1881, has set the tone and bar for WH reporting. In 2023 their stories and wire reports totaled close to 375,000 across hundreds of news outlets. Their style guide equally establishes norms that other news outlets follow. The WH knew what they were doing when they targeted the AP. President Trump would not relent.
President Trump confirmed that his Administration would continue denying the AP access based on its journalism, remarking of the AP, “[w]e’re going to keep them out until such time that they agree that it’s the Gulf of America.” The President then lambasted the AP, stating that the AP “has been very, very wrong on the election, on Trump and the treatment of Trump” and that “they’re doing us no favors and I’m not doing them any favors.” (pg 12-13)
President Trump expects a favor-for-favor relationship with the Press. This was clear in his first administration when CNN’s Jim Acosta and Playboy’s Brian Karem’s White House press passes were suspended. Acosta and Karem would both prevail in their proceeding lawsuits to return their Press access. Both of these cases had similar First Amendment and Fifth Amendment arguments to the AP’s argument. Let’s first look at the case of Playboy.
In July of 2019, Playboy reporter Brian Karem threw questions at President Trump while he left a press conference in the Rose Garden. As described by the US Circuit Court of Appeals for D.C. Circuit the following events transpired next.
[A]ttendees, however, reacted to Karem’s question: one shouted, “He talked to us, the real news,” and another said sarcastically, “Don’t be sad, don’t be sad.”...Karem smiled, gestured to the attendees, and declared, “This is a group eager for demonic possession.” … Although several people laughed, Gorka “took it differently.” … He “turned around in his chair and yelled, ‘And you’re a ‘journalist,’ right?’—making air quotes with his hands.” Id. As Gorka began to stand, Karem shouted in response, “Hey come on over here and talk to me, brother, or we can go outside and have a long conversation,” while motioning backward with his right thumb over his shoulder. Id. Gorka then walked briskly toward Karem, shouting, “Are you threatening me now in the White House? In the Rose Garden? You are threatening me in the Rose Garden?” Id. With the two men now standing face to face, Karem, his voice lowered, stated, “I said I’d be happy to talk to you.”... Gorka, still yelling, responded, “You are a punk! You’re not a journalist! You’re a punk!” Id. Gorka then walked away, and, as he did, Karem twice shouted in his direction, “Go home,” and then, “Hey Gorka, get a job!” ... Several minutes after this initial incident, Karem again encountered Gorka, this time in the White House Palm Room. Placing his hand on Gorka’s arm, Karem “tried to explain that, in making his earlier comment, he had only meant that he wanted to talk.” .... “Gorka . . . disagreed,” prompting Karem to repeat, “I said ‘talk.’” ... As staffers began ushering press out of the Palm Room, Gorka repeatedly told Karem, “You’re done.” Id. Before walking away, Karem tried to shake Gorka’s hand, but Gorka refused. Three weeks later, then-Press Secretary Stephanie Grisham notified Karem by letter that because of his conduct at the Summit, she had made a preliminary decision to suspend his hard pass for thirty days. (pg 7-8)
Karem would file a lawsuit contending that both his First Amendment and Fifth Amendment rights had been violated. He argued, under the Fifth Amendment he had been deprived of a basic First Amendment liberty without the due process of law. The United States Court of Appeals for the DC Circuit held that Karem was likely to prevail on his Due Process claims. Like all courts, the DC Circuit looked at any existing and controlling case law.
Our court addressed the constitutional protections associated with hard passes in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). That case concerned journalist Richard Sherrill’s application for a hard pass. At the time, “no written procedures” and “no published . . . regulations” “pertaining to the issuance of press passes for the White House” existed. Id. at 126–27. Instead, the White House Press Office typically approved a journalist’s hard-pass application if “the applicant ha[d] obtained a pass for the House and Senate press galleries, reside[d] in the Washington, D.C. area, . . . need[ed] to report from the White House on a regular basis,” and passed a “Secret Service . . . security check.” Id. at 126. Although Sherill satisfied the first three requirements, the Secret Service denied his application for “reasons of security.” Id. at 127. Sherrill filed suit, arguing that the denial violated his First and Fifth Amendment rights. We began by emphasizing that Sherrill’s claim “[wa]s not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.” Id. at 129. But given that “the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom” and given that “[t]hese press facilities are perceived as being open to all bona fide Washington-based journalists,” we held that “the protection afforded newsgathering under the first amendment . . . requires that this access not be denied arbitrarily or for less than compelling reasons.” Id. at 129 (internal citations omitted). Moreover, “the interest of a bona fide Washington correspondent in obtaining a White House press pass” is not only “protected by the first amendment” but also “undoubtedly qualifies as [a] liberty [interest] which may not be denied without due process of law under the fifth amendment.” Id. at 130–131. (pg 3-4)
The Court acknowledged that
the White House surely has a legitimate interest in maintaining a degree of control over media access to the White House complex. “The Constitution,” however, “does not permit [it] to prioritize any policy goal over the Due Process Clause,” and “enforcement of an unconstitutional law is always contrary to the public interest.” Gordon, 721 F.3d at 653. (pg 18)
The Court concludes
And because “any deprivation” of a protected liberty interest must “be effected pursuant to constitutionally adequate procedures,” Brandon v. District of Columbia Board of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987), a duly issued hard pass may not be suspended without due process. Accordingly, “[e]lementary notions of fairness” required that Karem “receive fair notice not only of the conduct that [would] subject him to punishment, but also of the . . . magnitude of the sanction that [the White House] might impose.” Gore, 517 U.S. at 574. Furthermore, because the suspension of a hard pass, like the denial of a hard pass, “implicate[s]” “important first amendment rights,” Sherrill, 569 F.2d at 130, we evaluate Karem’s suspension under a particularly “stringent vagueness [and fair-notice] test,” Village of Hoffman Estates, 455 U.S. at 498–99. Applying that test, we think Karem’s due process claim is likely to succeed because, on this record, nothing put him on notice of “the magnitude of the sanction”—a month-long loss of his White House access, an eon in today’s news business— that the White House “might impose” for his purportedly unprofessional conduct at the non-press-conference event. Gore, 517 U.S. at 574.
Karem was not the only reporter to succeed in court against Trump. CNN correspondent Jim Acosta found out in November of 2018 his press pass was revoked. The reason? That story was not clear either.
As reported by CNN seven years ago Jim Acosta lost his hard press badge after a press conference went awry. Per CNN’s later legal complaint this is how the event transpired
Speaking through a hand-held microphone, as did all the White House journalists who asked questions, Acosta asked a question about one of President Trump’s statements during the midterm campaign—namely, whether a caravan making its way to the United States from Central America constitutes “an invasion” of the country, a significant feature of the President’s messaging during the just-ended campaign. The President declined to respond, instead remarking: “You know what? I think you should . . . I think you should let me run the country. You run CNN. And if you did it well, your ratings would be much better.” When Acosta attempted to ask a follow-up question, President Trump refused to take it. A White House staffer then approached Acosta and attempted to grab the microphone. The staffer reached all the way across Acosta’s body, successfully latched onto the microphone, and physically attempted to remove it from Acosta’s right hand. Acosta held onto the microphone, stated “Pardon me, ma’am,” and continued to ask his question. The staffer finally sat down and allowed Acosta to ask his follow-up question. The President again declined to answer Acosta, saying: “I’ll tell you what, CNN should be ashamed of itself, having you work for them. You are a rude, terrible person. You shouldn’t be working for CNN.” The President further stated that “[w]hen you report fake news, which CNN does, a lot, you are the enemy of the people.” (pg 9-10).
When later presented with evidence that the posted video showing Acosta’s offense had been doctored and clearly contradicted their narrative the WH shifted its explanation for removing the pass arguing it was justified because Acosta was unprofessional and disrespectful. Their new argument (pg 5) was that he was impeding other members of the Press and the Presidency by not giving up the mic. Just like in the case above Acosta and CNN would later sue on grounds of First Amendment and Fifth Amendment violations.
CNN argued in its legal complaint this was not a case of security or well established rules but retribution against those who report facts the President doesn’t agree with.
As the President explained to Lesley Stahl of 60 Minutes: “You know why I do it? I do it to discredit you all and demean you all so when you write negative stories about me no one will believe you.” And the revocation of Acosta’s credentials is only the beginning; as the President explained, there “could be others also” who get their credentials revoked. (pg 3)
US District Court Judge Kelly focused also on the same case of Sherill v Knight and concluded in favor of a temporary restraining order: “The First Amendment interest undoubtedly qualifies as a liberty which may not be denied without due process of the law under the Fifth Amendment. (pg 7) Only a few days later Acosta’s pass was back and the case was dismissed.
No US Court has argued that the Press has unlimited and unfettered access to the White House when and how they want under the First Amendment. However, when that proverbial pool has been opened the government cannot then begin to pick and choose arbitrarily or with favor who gets to join the party. The White House can also establish rules and conduct for how they wish to negotiate said relationship with the Press. Those rules have to be fair, applied equally, and not revoked without due process. “When the Associated Press asked President Lincoln for an advance copy of an open letter to be read to the members of the Illinois Republican party meeting in convention, he refused to do it, saying, ‘I have found that documents given to the press in advance are always prematurely published’” (MJK pg 27). The WH would later set rules for speech embargos that were equally applied to all outlets when possible. This is nothing new and neither is the AP case.
Today the AP makes similar arguments to both Playboy and CNN in their legal complaint. By no surprise, all roads lead to Sherill v Knight.
The ban violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution. As the D.C. Circuit has made clear, journalists’ “first amendment interest” in access to the White House “undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment.” Sherrill v. Knight, 569 F.2d 124, 130-31 (D.C. Cir. 1977). Defendants gave the AP no prior or written notice of, and no formal opportunity to challenge, their arbitrary determination that the AP would indefinitely lose access to the Oval Office, Air Force One, and other limited areas as a member of the press pool – as well as access to larger locations open to a wider group of journalists and reporters with White House press credentials – unless the AP adopted the Administration’s preferred language in its reporting. 12. The ban also violates the First Amendment to the U.S. Constitution. The D.C. Circuit has made clear that denying journalists access to White House press events “based upon the content of the journalist’s speech” is “prohibited under the first amendment.” Sherrill, 569 F.2d at 129. Having opened the White House and certain areas to the press, the First Amendment “requires that this access not be denied arbitrarily or for less than compelling reasons.” Ateba v. Jean-Pierre, 706 F. Supp. 3d 63, 75-76 (D.D.C. 2023) (quoting Sherrill, 569 F.2d at 129) (emphasis in original), appeal argued, No. 24-5004 (D.C. Cir. Oct. 15, 2024). Defendants have not provided, nor could they provide, any compelling reason for their arbitrary denial of the AP’s access. Rather, Defendants’ actions are impermissibly based on their dislike of the content of the AP’s expression and what they perceive as the AP’s viewpoint reflected in the content of its expression. The White House ban of the AP also constitutes impermissible retaliation, as it was instituted to punish the AP for its constitutionally protected speech in ways that would chill the speech of a reasonable person of ordinary firmness. (p 4-5).
What I think is notable about this case as compared to the other three mentioned prior is that there is no accusation that the AP broke a formal rule of any kind. All three of those aforementioned cases included some grey area of someone at one point being a security or safety threat (all later to be disproven) which then transformed into some amorphous argument about decorum. The viewpoint discrimination and desire for editorial control seems clear in this case. The AP will not change its policy on the name of the Gulf of America on the grounds of international standards and confusion. The WH disagrees with this rationale and is punishing them.
The Reporters Committee for Freedom of the Press makes this textbook case of viewpoint discrimination clear and with two strategic citations in their brief supporting the AP. They cite none other than Justice Gorsuch and Justice Kavanaugh.
That unvarnished effort to punish a news organization for “the exercise of editorial control and judgment” strikes at the heart of the First Amendment’s protections for a free press,Moody v. NetChoice, LLC, 603 U.S. 707, 738 (2024) (quoting Miami Herald Publ’g Co. v.Tornillo, 418 U.S. 241, 258 (1974)), which safeguard the freedom of “[j]ournalists,publishers, and speakers of all kinds” to decide without official interference “what stories to tell and how to tell them,” TikTok Inc. v. Garland, 145 S. Ct. 57, 73 (2025)(Gorsuch, J., concurring in the judgment); see also Comcast Cable Commc’ns, LLC v. FCC,717 F.3d 982, 994 (D.C. Cir. 2013) (“[T]he FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government cantell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the WallStreet Journal or Politico or the Drudge Report what columns to carry; or tell the MLBNetwork or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing orThe Volokh Conspiracy what legal briefs to feature.” (Kavanaugh, J., concurring)).Media outlets that may “disagree with [the AP’s] editorial point of view from time to time”—and may disagree with the AP’s Stylebook on the very issues that angered the White House—have uniformly warned that Defendants’ actions here nevertheless threaten their freedom to report the news as they see it. (pg 9-10)
With First and Fifth Amendment claims in hand the AP sued. As expected the WH responded: “While their right to irresponsible and dishonest reporting is protected by the First Amendment, it does not ensure their privilege of unfettered access to limited spaces, like the Oval Office and Air Force One.” As before, this claim was sidestepping the argument on the arbritary and malicious nature of the decision to revoke access that was made in the other cases. Even at the initial hearings, U.S. District Judge Trevor McFadden was concerned though disappointingly not enough to issue a restraining order.
McFadden said the AP had not proven harm requiring an immediate restraining order. But he cautioned the White House that the law wasn’t on its side in barring AP over continuing to refer to the Gulf of Mexico, not simply the “Gulf of America” as Trump decreed in an executive order. “It seems pretty clearly viewpoint discrimination,” McFadden told Brian Hudak, a government attorney. With no ruling made, the White House is free to continue barring the AP from the Oval Office and beyond. The case promised to stretch at least until March 20, when an additional hearing was set.
As a result of the initial hearing, many free press organizations and advocates wait with baited breath. The WH did not wait to take more actions that seemed related to this very battle. In the last month after the initial AP incident the White House announced for the first time in its history that they would control the Press Pool. The WH argues this would open up more slots to underserved media formats and communities though the WH Press Association had taken on this initiative years ago as well. The WH followed through on this change. As Politico reported last month
[The] pool included other new faces. The Blaze, a conservative media company founded by Glenn Beck, was given a “New Media” pool spot. A new “secondary TV correspondents and crew” spot was granted to Newsmax, another conservative outlet. And after The Associated Press’ legal battles with the White House over the decision to remove it from a permanent spot in the pool, Bloomberg was listed as the only wire service on Wednesday. Typically, AP, Reuters and Bloomberg have each been in the pool, as they have historically been used to feed to outlets across the country that don’t have access to Washington and the White House.
The WH Press Pool is important and these changes can equally change how it functions. The Pool was in the motorcade during the JFK assassination and with President George W. Bush in the hours after 9/11.
“When [Pres.] George W. Bush was going to Florida just to read to a bunch of little kids. That wasn’t a newsworthy event, but the pool went with him. And 9/11 happened and that was a really important day. The [protective press] pool was sending out reports throughout the day of the president’s movements, what was happening, reassuring the world, ‘he is working, he is on the job.’ The White House didn’t put out any information for ages, the pool was doing that.”
The AP is part of this Press Pool story bringing unflinching and objective news to America and abroad.
The WH still does not withhold its disdain of the AP weeks later. Today at the daily press briefings that the AP is still allowed to attend, for now, Press Secretary Leavitt was asked by an AP reporter on how tariffs passed on from importers to consumers would equate to a tax cut. At the end of the exchange she quipped “I regret giving a question to the Associated Press.” Ultimately this is the meat and potatoes. The WH does not want to answer honest and well intended questions with well intended and honest answers on matters that impact Americans and folks abroad. The first 50 days of Trump II have refueled an unjust tug of war between a Fress Press For All and the government that will have immediate and long lasting consequences. We will explore in later posts the implications of how a muzzled press can distort the economy and cost lives. Until then we wait on McFadden’s March 20th hearing and reminisce on an apocryphal rainy story on how the Press Pool was formed under President Teddy Roosevelt.
“One day in 1895, William W. Price, a reporter for the Washington Star, walked up Pennsylvania Avenue to the White House and took up a position outside the front gate,” noted Washington correspondent Delbert Clark. “When politicians calling on President Cleveland emerged, ‘Fatty’ Price buttonholed them and milked them of what news they were willing to give down.” Once there he was joined by others: “Before long reporters for other papers, and out-of-town correspondents, joined Price in front of the Executive Mansion and with him ambushed the great, fresh from their communion with the Burning Bush.” There they stood for seven years when “the little knot of men outside the old iron fence grew larger,” said Clark. “Seven years they walked their beat, in the rigors of winter and the ghastly summer heat, in rain, snow, and sleet. Then one day it rained, a cold, dismal rain characteristic of Washington winters,” Clark continued. Relief was on the way. “From a window in the White House, warm and protected from the elements, Theodore Roosevelt looked out and took pity.” Then the president “called in his secretary and then and there directed that a special room be set aside in the newly built Executive Offices for the sole use of the press. The Washington correspondents had come of age.” Delbert Clark got the Washington weather right, but the remainder of his account provides a distorted portrayal of how the beat was created. Worse still, his story has been used by writers and scholars as a true rendering of how reporters established space in the White House. You can see the manner in which the story has become woven into the texture of our information base on governmental press relations.” ( MJK pg 5)