SCOTT DETROW, HOST:
For more on what happened today, let's turn to Andrew Weissmann. He is a former federal prosecutor and general counsel of the FBI, and we'll note he also regularly provides legal analysis on MS NOW, one of the key defendants here - or one of the key networks involved in this. Andrew, welcome to ALL THINGS CONSIDERED.
ANDREW WEISSMANN: Thank you so much.
DETROW: You said before you didn't think the administration would prevail here. As we just heard, President Trump doesn't seem to think so, either. Was there anything you heard from the hearing today that changed your mind?
WEISSMANN: No, I actually agree with David that while there are two grounds that the court could rule on, the First Amendment ground and the due process ground, certainly at oral argument - and, you know, things could change in a written opinion - but at oral argument, the judge was very focused on the due process issues here. And that does give a clean way for the judge to decide this. It is also consistent with what the judge did in the Jim Acosta case, which he had in 2018, where he ruled for the journalist against the government's position on due process grounds.
DETROW: Right.
WEISSMANN: So that seems like a clear way for him to move forward.
DETROW: That was the case during the first administration - a CNN journalist who was often going head-to-head with the president and Trump administration staffers. They tried to take away his press pass. That was overturned. I want to talk more broadly, though, about one of the arguments we've been hearing because you've seen the administration use it a lot, and that's the national security rationale for this ban. The letters sent to all three outlets say that they are, quote, "trafficking in verifiable falsehoods about national security and other issues and publishing sensitive or classified information." Tell us whether or not that particular line of argument could have some legal weight or judges might listen to it.
WEISSMANN: So normally, a good-faith argument based on national security would have the courts giving great deference, but it has to be a good-faith argument. Here, let me give you two reasons that I think there's - it's extremely problematic. Let me give you an example of the sort of post hoc national security rationalization. Here's an example from the MS NOW letter received from the Department of Justice, but this is after the deprivation had occurred - in other words, pulling their passes. And I'm just going to quote from it.
In August 2026, MS NOW claimed that the Iran conflict had significantly depleted the U.S. military's munitions supply. So that's directly quoting from the government saying that's one of the ways in which MS NOW infringed on national security interests of the government. But the source, what the MS NOW was citing, was a government document that the government itself had published in the Federal Register just two months before. So that is just pretextual, then, to say that's a national security issue.
DETROW: Yeah.
WEISSMANN: The second issue is that you have to remember the government has been using national security recently to try and shore up its claims. But for instance, when they used that in the...
DETROW: Sure, on the ballroom.
WEISSMANN: Yes.
DETROW: We're now seeing it with this arch Trump is trying to build.
WEISSMANN: Exactly. Exactly.
DETROW: It's a repeated argument.
WEISSMANN: Yeah. And as - I was the general counsel of the FBI, and one of the things that was surprising to me is if it's a true national security issue, you would not expect to see the government putting in filings in public exactly what the plans are for the arch or for the ballroom so that our adversaries would know, you know, in explicit detail what those national security things are and where they are. So it strikes me as an unusual way to be asserting a national security interest.
DETROW: We've got about 30 seconds left. You said a good-faith national security argument before. I'm wondering, have you seen a shift in how judges take these arguments over the past year or so? Are judges getting more skeptical?
WEISSMANN: Yeah, that's a great question. And I think the best evidence for that is the chief justice of the United States pointed out that the courts have a role to make sure that the invocation of asserted claims, including national security, are not pretextual. And that's the word, the specific word, that the chief justice used.
DETROW: And Andrew, I just...
WEISSMANN: To me, that read as a brushback.
DETROW: I've just got to pause you right there 'cause we got to move on for the segment. But that's Andrew Weissmann, a former federal prosecutor and law professor at NYU. Thank you so much.
WEISSMANN: You're welcome.
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