Trump’s White House Press Ban & Religious Coercion (with Mickey Dollens)

The Oath and The Office

The episode examines several constitutional crises involving the actions of Donald Trump and legislative leaders, specifically focusing on the legality of

Key takeaways

• Trump's ban on CNN, MS NOW, and Politico is identified as unconstitutional viewpoint discrimination.
• The Supreme Court's decision in Kennedy v. Bremerton has weakened protections against religious coercion in public institutions.

Main topics

• First Amendment and Press Freedom
• Religious Coercion in Schools

Notable quotes

The oath is to the Constitution, not a creed.

Conclusion

The episode serves as a warning about the fragility of constitutional

Transcript preview

Speaker 1 (0:00) This episode is brought to you by the Freedom From Religion Foundation. Quick civics question. When public officials swear an oath to the Constitution, does that mean protecting everybody's rights or promoting their own religion? Because as students head back to school, that question matters. Public schools serve families of every faith and no faith at all. They should not be used to pressure students, promote religious messages. or make any child feel like an outsider. FFRF says the oath is to the Constitution, not a creed. The Freedom From Religion Foundation works to keep state and church separate and speaks up for free thinkers, atheists, agnostics, and non-religious Americans. Learn more at ffrf.us slash office. That's ffrf.us. dot U.S. slash O.F.F.I.C.E. So Speaker 3 (1:13) what exactly does the Constitution allow a president to do if he doesn't like the coverage he's receiving? Is access to the White House a privilege a president can control? Or can government access to the press become a constitutional issue when it's conditioned on favorable coverage? I'm John Fugelsang. Welcome to the Oath in the Office podcast. As you know by now, Trump announced that CNN, MSNOW, and Politico, that left-wing socialist drag Politico, were banned from the White House, accusing them of publishing what he called fiction and lies. Reporters were denied access to the White House. They've now gone to federal court, arguing the administration violated their First Amendment rights. And then it got weird, because suddenly all the other networks, including Fox News, along with CBS, ABC, and NBC, joined forces to support the suspended TV pool. For more, let's go to the smartest player in the game, the author of The Oath in the Office, Professor Corey Bretschneider, the star of our podcast. Hello, Professor. Good to see you. Speaker 1 (2:12) Thanks so much, John. What a great setup. You know, this sounds like something that, you know, 10 years ago we would have thought of as a far-fetched law school hypothetical, but of course it's real. And what's going on is that the president of the United States has essentially said that he only wants his allies in the room, in the press briefing. And he's tried to ban those that he considers fake news. But really, in saying that phrase, fake news, what he's really doing is saying, I want to ban my enemies. And of course, this fits a theme that we're going to look at, his total disregard for the law. I'll talk about why this is an unconstitutional. barring of the press, violating the freedom of speech and the First Amendment, the freedom of press. But also we'll look, too, at the Kennedy Center controversy, the controversy over this planned warped arch that he wants to build. And, of course, we'll be joined, too, by a courageous representative from Oklahoma who's really fighting in the trenches to preserve religious freedom. Speaker 3 (3:17) Fantastic. Listen, Corey, I just want to ask. Do you appreciate that we all lived long enough to see Fox News tell Donald Trump, you leave CNN alone? Because I wouldn't have predicted it. I mean, I want to ask the most immediate question about this press pool saga. What is the constitutional issue when a president says, essentially, I don't like what these news organizations are reporting, therefore they are banned from the White House? I should point out the White House said they were being banned for fiction and lies. Which specific lies? They never said, and apparently they still haven't been asked. Speaker 1 (3:53) Well, the issue has been really teed up by the president. He's often his worst enemy when it comes to these legal cases, and he's giving us the argument straight up for why this is about freedom of speech. If he was saying, oh, I don't trust these reporters, or there's a security issue, or the pool, the number of people we can fit into the White House is limited. We would have had a real battle about whether or not this was even a free speech issue. But when he says, I'm banning those fake news organizations, what he's really telling us is that he's discriminating based on the opinions, or to use the language of the First Amendment, the viewpoint. of the reporters that are in the room. And let's not forget, too, the audience of those reporters, all of us who are listening to CNN and watching CNN, watching MSNOW. And that's why I think in the end, just to sum up the conclusion that we're going to get, this really runs head on into not just the text of the First Amendment that guarantees the freedom of speech, but a case that's already been decided about this issue in the 1970s, which essentially said, that presidents and the White House can't discriminate against reporters based on their opinions or viewpoints once they've invited in an array of different... kinds of perspectives into the White House, into the briefing room. And that case really decided this issue. And so I do think that the president of the United States is going to be pushed back, certainly by the lower courts immediately. And even if it goes to the Supreme Court, I think it'll be more complicated. The Supreme Court can overturn lower courts. But I think this is a definite loss for the president of the United States and will already be a lesson and a victory for the First Amendment. Speaker 3 (5:34) I think you're exactly right. So strange this happens right after Caroline Leavitt leaves. And while Susie Wiles is on vacation and there's no mommy figures around. But you mentioned something, a term that I learned from you, Professor, on this podcast, viewpoint discrimination. Is the crucial issue here the president's motive? In other words, is there a constitutional difference between limiting access for a legitimate security reason? and excluding a news organization because the president just doesn't like the facts they report. Speaker 1 (6:07) Absolutely. You know, if this wasn't about speech at all, if it was about, as I said, number of people, say, in the briefing room, which is not that large, then maybe there wouldn't be a free speech issue. And after all, not everybody in the United States has a right to enter that room. You need credentials and there are non-speech-based restrictions that are necessary in order to run who gets into the White House and who doesn't. But the president of the United States, even though in a normal, you know, a strategic president. would rely on something aside from speech when he says, I'm banning fake news. He's just telling us that he's banning those reporters that he doesn't want in the room. And you can't distinguish based on opinion. That's the whole idea of the First Amendment. And again, just to set it up, what the court is, the Court of Appeals, the Federal Court of Appeals has already decided for the D.C. Circuit in this case involving the Nation magazine, is that you cannot have a president say, I don't like the opinion. And that's why I'm banning the reporter. That case involving the nation was about whether or not security, a security rationale could be used. And yes, you know, if it really was a security rationale that would override even any kind of concern about the First Amendment. But. When the president says, I'm banning fake opinions, he's robbed his team of the ability to say this has anything to do with security. Speaker 3 (7:30) Yeah, exactly. But I mean, national security is his line to get whatever he wants that the courts say no, right? That's how he's getting his ballroom. That's how he's trying to get his big Nazi arch, which we'll get to later in the show. But, you know. Corey, when I'm talking to callers on my SiriusXM program about this and the ones who are pro-Trump, I ask them, what is the specific fake news? What is the lie that CNN told where they did not issue a retraction? And they'll say, the Russia hoax. No, no. What's the specific lie that they're accused of? And I think we're so used to this blanket fake news talk that I don't hear anyone asking the president those specifics. There's a really important distinction here between government censorship and government access, right? Because some folks would just say, well, he's not stopping CNN from airing things and publishing. He's just saying CNN can't come into the White House. Can you explain that distinction for listeners? Speaker 1 (8:23) I think, you know, that would have been a plausible argument if they were just saying, well, you know, we've got to restrict the number of news organizations to 20. And we've just... you know, based on criteria that have nothing to do with freedom of speech, picked MSNOW and CNN out as those people who don't fit our criteria that have nothing to do with speech. If they would have tried something like that, okay, now the burden is on CNN and MSNOW to make an argument that this is a lie and that what's really going on is a limitation on speech. But when he uses his insults to essentially say, I don't want these people in the room because I don't agree with them, and he uses his... His phrase that we all know is a way of disparaging his opponents, fake news. That just lets you know that, no, that's not going to work. He's undermined his defense. And so the motivation matters. And the statements of the president tell us that the motivation is to suppress speech. And you don't have a right to free speech everywhere. You can't come into my house and say whatever you want if I want you to leave. You know, I can. People can throw somebody out of a guest out of a party who's being offensive or, you know, even partisan in a way that they don't like. But the difference is when there's a government entity that invites in a range of viewpoints, creates a forum of free speech, which is essentially what's happening in the briefing room. The courts have been so clear. It's almost a bedrock idea of the First Amendment that government can't pick and choose. I like this view. I don't like that. That view. They can't say it's Speaker 3 (9:56) a Speaker 1 (9:56) discretionary privilege? Speaker 3 (9:57) In other words, invite everybody Speaker 1 (9:57) in and then pick and choose which views you want to allow or disallow. Speaker 3 (10:01) But that's the argument, right? They're saying there's no constitutional entitlement. You know, we don't let Hustler Magazine in here. It's a discretionary privilege to be in the same room as the president. Speaker 1 (10:10) Well, if you were saying, for instance, you know, we're not going to invite Home and Garden or we're not going to invite pornographic magazines and we're going to have a standard of journalism and people who are really going to cover the issues, that actually would be a plausible argument. But when the president says fake news, he's essentially admitting, yeah, these are news organizations. I don't agree with them. So, yeah, those could have been arguments that were made by the president's legal team. And he's essentially undermined them. Now, you know, I don't want to say this is a done deal. There are ways that two of the justices are, you know, Alito and Thomas might find for the president. I'll explain. Oh, you Speaker 3 (10:47) don't say, Professor. Really? Maybe Alito and Thomas would automatically go? Speaker 1 (10:52) But, you know, I'm just giving you the straight legal argument, which is this is an obvious violation of free speech. And I think that. You know, he did it in a moment where he wasn't being supervised by the adults left in the room. And, you know, he's going to he's going to learn a constitutional lesson as a result. This has happened before. You know, I don't Speaker 2 (11:12) want Speaker 1 (11:12) to pretend this is unprecedented. I'm hearing that phrase a lot. And as listeners to this podcast know, and John, as we've talked many times, John Adams signed the Sedition Act and used it to shut down reporters that he didn't agree with. to, in that case, not just deny them access to the president's mansion at the time, which was in Philadelphia, not in Washington, D.C., but to actually imprison them and try them for writing what he regarded as fake news. But the reaction to John Adams' Sedition Act, to those prosecutions, really created the ideas of the First Amendment, of the way we understand free speech, as a right of all to have opinions free from prosecution. This isn't as bad as the Sedition Act. It's not about prosecution. It's about, you know, a more general idea of who gets into the White House briefing. But the principles, the rebuke of John Adams remain on the table. Well, hey, Speaker 3 (12:07) thanks, Fox News, for defending norms. Welcome to the resistance. Corey, I want to ask you about the separation of powers. House Speaker Mike Johnson, America's creepiest youth pastor, he just sent all the lawmakers home early. delaying any consideration of Thomas Massey's privileged resolution seeking to impeach Defense Secretary Pete Hegseth. This is crazy. Massey's resolution has eight articles that are about various specific constitutional abuses, including claims involving military operations, war powers resolution. Johnson has said that's a publicity stunt, and he says the early adjournment was unrelated. But wow, it's like Mitch McConnell disease. They just, they're going to go off and get paid for not showing up to work for the next 43 days. Corey? Does Congress have a responsibility to consider an impeachment resolution once all the procedural requirements for bringing it to the floor have been met? Speaker 1 (12:57) I mean, this is such a sad state of affairs because the one place where the framers, I think, were, well, naive and overly optimistic was when it came to what they thought. was the main check, not just on a president, but also on the most senior officers in the executive branch, including certainly cabinet officials. And what the framers did is they created a system in which, through examination of abuses of power, that these people could be removed, not just the president, we've often talked about impeachment and a president, but also high-level executive officers, including... the Secretary of Defense, Pete Hegseth. So their idea, here's where they really, I think, were naive. You know, even from the beginning, they thought, look, this was a nonpartisan, not a political issue. And in fact, the way they set it up is that the process of impeachment, where 50 % of the House is required for the first step, impeachment. And then a trial, what they call the trial, it's not a trial in the sense of the judiciary. The Senate is supposed to transform itself into a new kind of nonpartisan, bipartisan body, which is the Senate acting as a court, a court of impeachment. And then to decide, has there been such an abuse of power, and the framers use the phrase high crimes and misdemeanors, that we've got to protect ourselves from this administrative official. And what they got wrong was that the whole process is never going to get started if you have a Speaker of the House who is a partisan defender of the administration and its top officials. And that's what you have here. You have from the beginning, you know, a member, Thomas Massey, trying to say, member of the president's own party, you know, this has been an abuse of power by not just the president, but the Secretary of Defense when it comes to the war, when it comes to the... Killing, I should say, too, just to get the issues on the table. Please. Speaker 3 (14:54) Oh, yeah. I mean, but, you know, the Republicans right now are all about oversight when it comes to their own party. Professor, we're going to take a break. But before we go, I got to ask, what does it mean constitutionally when, like, the leader of the House changes the whole legislative calendar in a way that prevents a privileged resolution from receiving a vote? I mean, this sounds like Mitch McConnell cutting the Supreme Court down to eight members for a full year. Speaker 1 (15:21) You know, I just have to say, you know, to emphasize the point that the framers really made a mistake here because the Speaker of the House has enormous power that they didn't anticipate. And what's really going on is an ability to just bypass the entire process of what's supposed to be a nonpartisan process of impeachment by the House of Representatives and then removal by the Senate and coming together in order to save the country when we have. a secretary of defense who's not only engaged in an illegal war, but really, you know, in killing what are supposedly drug traffickers, but very likely are migrants in these boats that are just... No, fishermen, fishermen. We Speaker 3 (16:02) know they did. October 16th of last year, they had two survivors. And so they put them on a Navy ship and eventually returned them to their home country, which means either we are killing people or we're letting narco-terrorists go. And after that, as you know, professor, they did double taps. They did... allow any more survivors. This is murder. Speaker 1 (16:20) That's right. And, you know, that's exactly the purpose of impeachment and the trial is to partly to get the facts on the table, to remove a cabinet officer like Pete Hegseth, who's engaged in not just illegal activity. This is really undermining the principles of democracy when you're engaged in essentially. killing people without any due process or without any reason. And the information that's supposed to come out, the idea is that now the American people know what's happening, the Congress knows what's happening, and that could in turn lead to an impeachment removal. of the president if he's ordering it, which of course in this case he is. And so what the Speaker of the House has done is really undermine this whole process for solely partisan reasons. You know, we heard Representative Jared Huffman talking about how Speaker Johnson is, you know, a Christian nationalist and affiliated with so many of these organizations that on January 6th threatened our democracy. And yet he's able to now again threaten our democracy by depriving us of basic information. So, you know, this was a hopeful idea that the people through Congress, through the House of Representatives, and through the Senate could check high crimes and misdemeanors, abuses of power. This is a paradigm of it. And yet here you have one person, the Speaker of the House, able to undermine it all. Speaker 3 (17:43) When we come back, Donald Trump loves putting his name on things he had nothing to do with at their creation, like the Institute of Peace, the Kennedy Center, Tiffany. We'll talk all about the Kennedy Center and the legal ramifications around what he's trying to do. We'll be right back on The Oath in the Office. Speaker 1 (18:02) This episode is brought to you by the Freedom From Religion Foundation. We talk every week about