DOJ Asks Court for Immediate Appeal in Trump First Amendment Fight

The president wants the Second Circuit to review his failed motion to dismiss the suit before the remainder of the litigation plays out.
BRENDAN SMIALOWSKI/AFP via Getty Images

President Donald Trump's Department of Justice lawyers are asking a New York federal judge to allow an immediate appeal of her decision that a suit accusing him of repeatedly violating the First Amendment can move forward — and they want to pause the proceedings in her courtroom while that appeal plays out. 

PEN America in October 2018 sued Trump because it claims he repeatedly violates the First Amendment by threatening and retaliating against news outlets whose content he views as "hostile." The DOJ asked the court to dismiss the complaint arguing that the group lacks standing because its only affected member is CNN's Jim Acosta, whose press credentials were reinstated after being stripped. Plus, it argues the court lacks the power to control the official, discretionary actions of a sitting president.

U.S. District Judge Lorna G. Schofield in March trimmed PEN America's claims but allowed part of its suit to proceed. Specifically, she's letting the group seek a declaration (but not an injunction) related to whether Trump is violating the First Amendment in connection with revoking or threatening to revoke press badges and security clearances.

In a Monday letter to Schofield, Trump's DOJ lawyers asked for a pre-motion conference so it can lay out its arguments for an interlocutory appeal of that decision and its request to stay the district court proceedings until that process plays out. 

The DOJ argues that if the U.S. Court of Appeals for the Second Circuit agrees with Trump that either the president can't be sued for such declaratory judgment or that PEN lacks standing, the case would promptly end — or, even if the appellate court doesn't go that far, the matter could at least potentially be narrowed in scope. Saving time and court resources is always positive, but when the defendant is the sitting president the DOJ argues it's particularly important.

Further, the DOJ argues Schofield's opinion addresses four controlling questions of law that leave "substantial ground for difference of opinion." Those four questions are: whether the president can be sued for declaratory judgment regarding non-ministerial actions taken in his official capacity; whether allegations of a chilling effect on protected speech of third parties support organizational standing for a First Amendment claim; whether the First Amendment actually prohibits the president and his team from giving more or less access to reporters based on their coverage; and whether PEN can bring a First Amendment claim challenging the revocation or threatened revocation of security clearances based on allegations that there is a chilling effect on third parties' speech. 

While the appellate court considers these questions, if interlocutory appeal is approved, the DOJ wants this proceeding to be paused. 

"Because the President is the sole defendant in this case, the discovery sought by plaintiff will raise significant issues of executive privilege and separation of powers," states the letter, which is posted in full below. "[T]he possibility of avoiding these difficult issues will be lost if discovery proceeds while the Court decides the President’s certification motion or while the Circuit considers any potential petition to appeal, or the appeal itself."

Nora Benavidez, director of U.S. free expression programs for PEN America, sent THR this statement via email in response to the letter: "The president continues to assert that he is above the law. He is wrong. The district court correctly ruled that our complaint alleged First Amendment violations by the president of the United States and could move forward. We look forward to pressing ahead to prove our claims, hold the president accountable and make clear that threats and acts of retaliation by government officials to punish protected speech are unconstitutional."