The Latest In Associated Press v. Budowich

The Trump Administration changed the name of the body of water between Florida and Texas to the Gulf of America. The Associated Press still calls it the Gulf of Mexico. In response, the Trump Administration excluded the wire service from White House press events. The AP sued three officials within the Trump Administration, seeking to restore access to the Oval Office and other spaces.

In this case, District Judge McFadden ruled against the Trump Administration. But he did not issue an unappealable TRO. Rather, after deliberate briefing and proceedings, on April 8, the court issued a detailed preliminary injunction order requiring the AP to be admitted to press events. (Eugene wrote about the First Amendment issues here.) And unlike some of his colleagues, Judge McFadden stayed his order so that the government could take an appeal to the D.C. Circuit. The stay would expire on April 13.

On April 10, the government filed an appeal to the D.C. Circuit. DOJ sought an emergency motion for a stay and an immediate administrative stay:

The government therefore respectfully requests that this Court enter a stay pending appeal, as well as an immediate administrative stay while the motion is under consideration. At a minimum, the government requests that the Court stay the district court's order through April 20, 2025, in order to permit the Solicitor General time to seek relief from the Supreme Court.

On April 13, the panel (Pillard, Katsas and Rao) ordered oral argument to be set for April 17. But the panel did not rule on the motion for an administrative stay. By the end of April 13, the district court's stay lapsed, and the order went into effect.

Yesterday, on April 14, DOJ submitted a letter to the Court renewing the application for an administrative stay so the Solicitor General could seek emergency relief from the Supreme Court:

Yesterday, the Court scheduled oral argument on the government's emergency motion for a stay pending appeal. We are grateful that the Court is providing us with the opportunity to present argument in support of our motion and appreciate the priority the Court has afforded this matter. The Court has not, however, yet ruled on our request for an administrative stay. Because the district court's stay of its own order expired on Sunday, April 13, that order has now taken effect. As of this morning, the President of the United States is subject to an order imposing terms on which he must admit individuals to the Oval Office and other restricted spaces. In light of the magnitude of this intrusion, a continued stay is warranted until this Court can reach the merits of the government's motion. We accordingly respectfully reiterate our request for an administrative stay. The administrative stay should continue through the time the Court decides the emergency motion and, if that motion is denied, we ask that the stay be extended an additional seven days in order to provide the Solicitor General with an opportunity to seek relief from the Supreme Court.

Also on April 14, the White House apparently excluded the AP from coverage of President Bukele's visit to the Oval Office.

I have a several thoughts.

First, I think DOJ's position is that any injunction running against the administration should be administratively stayed long enough to seek Supreme Court review. President Trump has been fairly consistent in saying that he will follow Supreme Court rulings, though perhaps he thinks "inferior" courts should not be in the business of superintending the executive branch.

Second, DOJ drew what could possibly be the most favorable panel possible on the D.C. Circuit with Judges Katsas and Rao. They chose to not grant an administrative stay. Indeed, the district court order was issued by a well-regarded judge, also appointed by Trump. I am skeptical that Circuit Justice Roberts will vote differently.

Third, as soon as Judge McFadden's order expired, the three named defendants were subject to an injunction: Chief of Staff Susan Wiles, Deputy Chief of Staff Taylor Budowich, and White House Press Secretary Karoline Leavitt. If any of these three defendants took action to block the A.P. from accessing the Oval Office, or if they directed their subordinates to deny access to the A.P., I think it is possible they could be held in contempt of court. But I'll concede that holding officials in contempt while the legal ruling is on appeal has some problems.

Fourth, it is possible that the decision to exclude the A.P. from Bukele's visit was not performed directly or indirectly by these three named defendants. If so, those other officials could not be held in contempt. Government officials who are not subject to an injunction cannot defy it. And Cooper v. Aaron, for all of its warts, only asserted the judicial supremacy of the Supreme Court, not of the lower courts. I'm also not certain that other officials in the White House, if sued, would be denied qualified immunity, as the case was still pending on appeal.

Fifth, I think we need to be careful when asserting that Trump, or the administration, ignored a court order. Judgments run against named parties, not collectives. Generations of lawyers incorrectly asserted that President Lincoln ignored Chief Justice Taney in Ex Parte Merryman. Scholars were desirous of seeing President Lincoln ignore a Supreme Court order, so they misstated the posture of Merryman. But Seth Barrett Tillman has debunked that myth--no order ran against Lincoln, so there was no order for him to ignore. Here too, the media and critics are desirous of seeing President Trump ignore a judicial order, so they misstate the posture of Budowich. Trump was not a party to the Budowich case, and we have no clue if he was even aware of the exclusion during the Bukele visit. (Though I'm sure some future impeachment committee will try to figure out what he knew and when he knew it.)

Issues are usually more complex than they seem.