A federal appeals court panel seemed split over The Associated Press’s exclusion from certain White House spaces as it weighs whether to halt an order directing the Trump administration to restore the wire service's access to such areas.
AP’s battle with the White House, which stems from its refusal to use “Gulf of America” in its popular stylebook, came to a head last week when a federal judge deemed unlawful the outlet’s exile from the press pool, a small group of journalists that document the president’s movements and statements in and around the White House.
The administration was told to reinstate AP's access to the Oval Office, Air Force One and other small spaces that hold a limited number of officials and journalists, which it quickly appealed to the U.S. Court of Appeals for the District of Columbia Circuit. A three-judge panel heard arguments Thursday.
An AP reporter and photographer has traditionally been part of the president’s press pool every day, both at the White House and when the president is traveling. Reporters are usually granted questions by presidents dating back decades.
But DOJ lawyer Eric McArthur argued that the AP’s case is not just about the spaces from which the wire service was excluded; it’s about access to the president. Presidents have the “personal autonomy” to decide to whom they reveal their minds, he said.
“They can’t force the president to answer their questions,” McArthur said.
“And they’re not claiming they have any right to force the president to answer their questions,” Judge Cornelia Pillard, an appointee of President Obama, pushed back.
The spaces from which Trump seeks to exclude the AP are not a press facility like the Brady Press Briefing Room and are intended for the president’s personal use, McArthur argued. Though the East Room – another space from which the AP was turned away – is less private, its primary function is to host events, not serve the press, he said.
The East Room also typically hosts a president’s press conference, either on his own or alongside a foreign leader.
McArthur said that under the current rule, the White House could not exclude “white supremacist” news organizations from a Black History Month celebration or “avowedly antisemitic” ones from a meeting with the prime minister of Israel.
The AP bills itself as a worldwide, nonpartisan and independent news organization.
Charles Tobin, a lawyer for the AP, acknowledged that it’s the president’s prerogative to revoke AP’s daily spot in the press pool — but it can’t single out the outlet for exclusion from the pool based solely on its viewpoints.
“I would not argue that we have a right to be the line leader,” Tobin said. “But now we’re completely shut out.”
After AP’s request for a preliminary injunction restoring its access was granted, the White House decided to remove the spot typically reserved for wire services from the press pool. The new policy means wire services will be eligible for selection as part of the pool’s daily print-journalist rotation but will no longer have a permanent slot in the group.
Judge Gregory Katsas, a Trump appointee, called the move a “poke in the eye, no doubt about it.” But he said the new policy, on its face, is viewpoint neutral.
Judge Neomi Rao asked whether courts would be “constantly micromanaging” the president’s decision-making if the AP prevailed, pointing to its motion to enforce the lower court’s order soon after the White House changed the rules.
“So, then a court needs to say the president does not have absolute discretion?” Rao asked.
“The court needs to say the president’s discretion is cabined by the Constitution,” Tobin countered.
U.S. District Judge Trevor McFadden, who granted the AP’s request for a preliminary injunction, will hear arguments Friday over whether the White House has shirked the order.
An AP photographer was allowed in the photo pool Thursday but a print reporter has not been allowed in the group since the White House first passed along its decision in February.
The clash between AP and the White House is far from over, but a judge on the panel signaled that Trump administration could circumvent the problem by approaching it with a broader stroke.
“If he wants to abolish the press pool, I think he would be entitled to do that,” Pillard said.
Everyone seemed to agree.
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