Even Trump-appointed judges skeptical of AP ban over 'Gulf of America' spat

WASHINGTON (CN) — The Justice Department urged a D.C. Circuit panel to lift a court order blocking the White House’s ban on The Associated Press Thursday, suggesting that President Donald Trump had “absolute discretion” over which reporters gain access to the Oval Office.

The three-judge panel, dominated by two Trump appointees, grappled with the unprecedented First Amendment issues presented by the case, attempting to find a line between rubber stamping the discriminatory ban and opening the door to more legal challenges when a reporter is denied access to White House events.

The case centers on the Trump administration’s move in February to bar the AP’s reporters and photographers from participating in any press pool events inside the White House, in an effort to force the outlet to use “Gulf of America” when referring to the Gulf of Mexico.

While the panel seemed to agree that the president should continue working with the press pool — although U.S. Circuit Judge Cornelia Pillard briefly seemed to suggest Trump may be “entitled” to abolish it — they differed on whether Trump could pick and choose which reporters has access to certain Oval Office events.

U.S. Circuit Judge Gregory Katsas, a Trump appointee, suggested that Trump could reshape the press pool into 20 of his “favorite journalists” and move away from the rotational system the pool has long operated under.

Justice Department attorney Eric McArthur quickly adopted that argument and suggested such a move would sink the AP’s lawsuit altogether.

U.S. District Judge Trevor McFadden, a Trump appointee, ruled on April 8 that the ban violated the First Amendment guarantee of press freedom because the government cannot block certain journalists from events based on their viewpoints, even in the Oval Office or the East Room.

McArthur argued that the case was not about access to such spaces, rather it was about access to a person — the president — and said McFadden’s order wrongfully impeded the president’s “autonomy.”

That autonomy, McArthur said, further relied on limiting who has access to “personal spaces,” suggesting that the Oval Office is the president’s personal workspace and he should be allowed to pick and choose who enters that space.

Pillard, a Barack Obama appointee, found McArthur’s suggestion dubious. She said that, as the chief executive, the president is the most public figure in the country and any “personal” aspects of the job fade away.

Katsas pressed McArthur on whether the Oval Office and East Room should be considered a nonpublic forum or not a forum at all — a key test under the First Amendment — and suggested that if they were nonpublic, the government’s case would fail.

McArthur argued they should not be considered forums, comparing the areas to one-on-one interviews with the president, in which he should have every right to discriminate who receives such access based on their viewpoint.

U.S. Circuit Judge Neomi Rao, a Trump appointee, expressed concern that ruling in the AP’s favor would lead to waves of similar lawsuits every time a reporter is denied access to a White House event, resulting in the courts “micromanaging” the White House press list.

She pressed the AP’s attorney, Charles Tobin of Ballard Spahr, whether such an order would require the panel to find that the president does not have absolute discretion over press access.

Tobin pushed back, noting that the only limit the panel could and should place is a requirement that Trump cannot create a policy that violates the Constitution.

In his ruling, McFadden noted the ban was clearly based on viewpoint discrimination, a textbook violation of the First Amendment, adding that the Trump administration had been “brazen” in stating the ban was because the outlet “refuse[d] to adhere to what the president believes” regarding the Gulf of Mexico’s name.

“The government offers no other plausible explanation for its treatment of the AP,” McFadden added. “The Constitution forbids viewpoint discrimination, even in a nonpublic forum like the Oval Office.”

Since his order went into effect Monday, the AP was barred from entering White House events both Monday and Tuesday — which McArthur stated was simply because it wasn’t their turn in the press pool rotation — per a new White House policy that abolished spots meant for wire services.

The AP filed a motion to enforce McFadden’s injunction, noting that the White House Press Office said on Monday the AP would continue to be excluded because the case was still “ongoing,” an apparent defiance of McFadden’s in-effect order.

McFadden has ordered a hearing for Friday to consider the AP’s motion.

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