The WH Plays Constitutional Chicken With The AP Lawsuit

Last week I did a deep dive into Judge McFadden’s decision ruling in favor of the Associated Press against the Trump administration on First Amendment grounds. In a clear rebuke and deflection of Judge McFadden’s order the WH has removed all wire news spots in the rotating pool. My guess is the WH will argue that this is a viewpoint neutral decision that equally disfavors all wire news organizations. This argument will still probably fall on constitutional arguments again as the original viewpoint bias is baked into the decision. Further, the administration has lambasted other wire services so they too could claim this is further and targeted retribution. The WH stated again they ought to get full and utter deference to decide sensitive access to the President. This does not engage with McFadden’s arguments that once you provide access it cannot be based on viewpoint and removed without due process. In previous posts I did wonder if at some point the pool would just be eliminated entirely but the President’s affinity for press and attention probably make that unlikely.

Rightly the AP has already chastised the administration for likely violating McFadden’s order. These actions are still clearly examples rewarding favor and punishing disfavor depending on how you cover the President. The WH is creating a pool that insulates itself from scrutiny. As the AP notes, “Under Leavitt, the White House has given greater access to news outlets friendly to Trump. That was visible Tuesday, when the first reporter Leavitt addressed during a briefing asked two questions while also praising Trump policy. At Monday’s Oval Office meeting, Trump bristled at questions from CNN’s Kaitlan Collins about a man deported to an El Salvador prison, at one point accusing CNN of ‘hating our country.’ He made it a point to contrast her questions with a non-pointed one from another reporter.”

Axios has a detailed article out today mapping the changes to the WH Press Corp in the last year. Of the incidents in the last month this one has stood out to a lot of folks: “Before Trump's annual physical last week, Castronuova told Press Secretary Karoline Leavitt that Trump ‘actually looks healthier than ever before, healthier than he did eight years ago, and I'm sure everyone in this room could agree. Is he working out with Bobby Kennedy, and is he eating less McDonald's?’” Real hard hitting coverage and accountability from the Fourth Estate.

The current WH points to the number of questions asked and news conferences compared to predecessors as a metric of the free press. No one is contesting that President Biden had extreme flaws in his relationship and maintaince with a free press. Biden fist bumped Saudi Crown Prince MBS after our own government concluded he was likely connected to the butchering and dismemberment of Washington Post reporter Jamal Khashoggi. Later in the year we will review Biden’s failures and successes with the press. But for now the quantity of access is meaningless if said access is just promotion and veiled praise. Real access is about accountability and informing the public without misinformation.

Keep an eye on updates from Judge McFadden.