President Donald Trump's administration submitted an overnight filing in his lawsuit involving the ban of certain members of the press. One constitutional lawyer is warning that there are fatal flaws in the filing that could sink the case.
According to the filing, reporting about Trump's ballroom construction and the Iran war "could" endanger national security. Speaking to CNN Wednesday morning, Seth Berenzweig quibbled with the national security elements of the case.
Trump's legal team "talked about publishing with respect to the preparation and building of the bunker, the administration and the Justice Department talked about disclosure with respect to munitions and other aspects of interceptors. So, you know, it is going to be, frankly, an uphill battle by both sides."
Trump has been the one to reveal many of the specifics about the projects the DOJ listed in Tuesday's filing. Aboard Air Force One, Trump said, “The military is building a big complex under the ballroom." He went on to describe the ballroom as “essentially” becoming “a shed for what’s being built under,” National Public Radio said.
Axios reported that Trump said as said the underground facility will be six stories deep and is being constructed by the military. Trump said in his own public court filing that the bunker would include bomb shelters, a hospital and major medical facilities, secured communications and telecommunications systems and bio-defense infrastructure.
Trump claimed in 2022 that a president could declassify documents “just by saying it’s declassified” and then went further, adding “even by thinking about it.” He's made it clear that as president, he has the broad authority to disclose information to the public.
"One of the unique elements of where we sit today is that this is an emergency injunction hearing," Berenzweig said. "Specifically, the media is asking for a TRO, a temporary restraining order, and what that does, as kind of a unique legal animal, is it takes the end of the train and kind of puts it up to the front. In other words, the legal standard is whether the plaintiff can demonstrate a likelihood of success on the merits. That's a hard standard."
The White House press pool is there to report on what the president says publicly and to ask questions at the briefing, among other things. The administration is still publicly releasing that information, either through other media outlets, as the ban applies only to select networks in the press pool. In fact, the White House has started its own "Trump TV" channel to release the same information that would otherwise go out through the press pool.
Berenzweig also thinks that the press' argument about due process isn't as strong as its argument about the First Amendment.
"I think that that is a viable argument. That's really where I think Judge Kelly is going to come down today," he said about U.S. District Judge Timothy Kelly, presiding over the case. "And regardless of who wins or loses, one of the elements and aspects of injunction litigation is, this these cases are very fast-tracked. This is going to be resolved. The entire case, frankly, is going to be resolved within a matter of days, if not more than just another week or two. It's very front-loaded. There will probably be a ruling. We'll probably get it by close of business today, so it'll be interesting to see what happens in this fast-moving case."
However, the due process argument he cited was also used by former White House reporter for CNN, Jim Acosta, who claimed that his credentials were taken away without even an ability to respond. That same judge now presides over the new case, Politico recalled in a Tuesday report.
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