Attorney for banned outlets on legal fight over White House press access

Geoff Bennett:

A federal judge has once again ordered the White House to restore access for three news organizations President Trump banned last month over their coverage of his administration.

In a ruling issued late last night, the judge ordered the White House to restore full access for CNN, MS NOW, and Politico while their legal challenge moves forward. The order remains in effect until the judge reaches a final decision or a higher court intervenes.

Joining us now is Ted Boutrous. He is the attorney representing CNN, MS NOW, and Politico.

Thanks for being with us.

Theodore Boutrous, Attorney for Media Outlets: Thanks for having me.

Geoff Bennett:

So, walk us through this ruling. What did the judge find most troubling about the White House's actions and what does all of this mean in practical terms?

Theodore Boutrous:

The judge ruled on two fundamental questions, first found that we were likely to succeed on our due process claim, which is that President Trump, out of the blue, without any notice, without any notice of the standards that might cause someone's hard pass to be taken away at the White House and to be banned from the White House grounds, took away their hard passes, announced what he called this ban on the free press.

And the Due Process Clause requires fair notice and an opportunity to be heard when the liberty interest like the First Amendment is being taken away by the government. And there are D.C. Circuit cases at the Court of Appeals on this very issue. So the court said we were likely to win on that because none of my clients had any notice of anything and they didn't do anything wrong.

The second fundamental question the court addressed were the First Amendment issues. And this is really important, because the court ruled that the stripping of the hard passes and banishment from the White House was done first in retaliation for free speech and for First Amendment activity by MS NOW, CNN and Politico and their journalists.

President Trump didn't like what they were reporting, and that he took away their credentials to lash out and retaliate.

Geoff Bennett:

Our team reached out to the White House for a statement.

And they responded by saying, in part -- quote -- "The fake news has no place demanding a spot in the president's Oval Office."

Now, the White House argues that news organizations have no inherent right to access the president, which is true. So where do you draw the line? Where's the constitutional line, I should say, between a president's discretion to determine who gets access and unlawful retaliation against journalists for their coverage?

Theodore Boutrous:

It's a really great question, and the judge addressed that, that the test is, has the government opened up a government building to First Amendment activities, what's called a nonpublic forum?

And, if it does that, if it says, look, normally, we keep this closed to the press and to others, but we do open it up and we allow people in here, journalists, to ask questions and engage in journalism, once that happens, the Constitution, the Supreme Court cases, the D.C. Circuit cases, talking specifically in the D.C. Circuit's case about the White House press facilities, require that the restrictions be reasonable on those who are allowed in who have press credentials here, and also that they cannot be thrown out because of their viewpoint.

It has to be -- those restrictions have to be viewpoint-neutral. So the White House, in their statement, they're just playing right into our hands. They're basically confirming what the judge said, that the reason that the press passes were vacated by President Trump is because he doesn't like these news organizations and what they publish and broadcast.

And that is a fundamental First Amendment violation, and the judge found we were likely to win on that as the case moves forward.

Geoff Bennett:

A question about the precedent this could set, because this White House, this Trump White House has granted access to a number of pro-Trump MAGA-friendly outlets.

If a future Democratic administration excludes those same organizations because it objects to their legitimacy and objects to their coverage, would that raise the same First Amendment concerns?

Theodore Boutrous:

It absolutely would. And that's why you see such solidarity among news organizations and journalists.

The Reporters Committee filed an amicus brief, with 77 news organizations joining, including from all across the political spectrum, if we want to call it that. The head of the White House Correspondents' Association, the president this year is Jacqui Heinrich from FOX News.

She's been advocating against these restrictions and these banishments because it's a two-way street. If one president can do it, another president can do it. And that's not what the First Amendment is all about. It's really an equal playing field. It doesn't take sides. That's the whole notion of why you can't have viewpoint discrimination.

So it's really counterproductive. President Trump can spar with these reporters. He should just go back to normal and spar with reporters, answer their questions, instead of lashing out like this and banishing news organizations and reporters because of what they publish and broadcast.

Geoff Bennett:

Attorney Ted Boutrous, thanks again for joining us this evening. We appreciate it.

Theodore Boutrous:

Thanks for having me.

And a note that PBS News is among the more than 70 news organizations that signed a legal brief supporting the effort to restore White House access for CNN, MS NOW, and Politico.