CNN, MS NOW, and Politico File Lawsuit Against President Trump
When a President Chooses His Own Reporters, He Judges in His Own Case
A lawsuit by CNN, MS NOW, and Politico is not a quarrel among courtiers, but a test of whether political power in your age still understands that it is held on trust and answerable to open scrutiny.
I am told of an incident in which several news organizations—CNN, MS NOW, and Politico—have brought suit against a sitting president, alleging that he violated their constitutional rights. The spark, so far as is reported, is his refusal to permit one of them to provide the common, or pool, coverage of his departure from the White House and his visit to the United Nations in New York. Major television networks, it seems, sided with the excluded party. The picture is thus of a magistrate, about to appear on a world stage, choosing which witnesses the public may employ to behold his conduct. I cannot help hearing, beneath these modern names, an old and dangerous claim to rule opinion by favour.
Because the facts are spare, I will not pretend to know more than is reported. I do not know what reasons were given for the exclusion, or what precise rights are claimed to have been infringed. But even so, the frame of the question is plain enough. Here is, first, political power, lodged in the hands of one man by the constitution of your commonwealth. Here are, secondly, persons and corporations who, by trade, gather and publish matters of fact to the people. And here is, thirdly, an appeal to the courts, as to an impartial judge, to determine whether that power has been used within the trust reposed in it, or has slipped into mere will and pleasure.
When I wrote of civil government, I defined political power (I paraphrase myself from the Second Treatise) as the right to make laws, with penalties, only for the public good. Such power, I added, is a fiduciary thing: committed by the people to governors for the preservation of their property, taken in the large sense of lives, liberties, and estates. No man is born with a right to rule another; all are by nature free, equal, and independent, the workmanship of one Maker, sent into the world about His business, not about the business of any prince. Whoever would command another must therefore show that free men could reasonably consent to such authority, as a means of better securing what nature already gave them.
Now among the liberties that secure all the rest, the free discovery and publication of matters of fact concerning those who govern is not the least. A people cannot judge whether the trust is faithfully discharged if they are allowed to see their rulers only through a glass of the rulers’ own polishing. If a magistrate may select, at pleasure, which reporters attend him on public business, particularly at the seat of another great power such as the United Nations, he gains a dangerous advantage. He does not indeed silence all speech; yet he bends the main instruments of common knowledge toward his own image. He ceases to be merely subject to law and becomes, in part, the curator of the evidence against himself.
It will be said, perhaps, that a chief magistrate must have some prerogative in ordering his movements and security, and in managing the ceremonial of his office. I grant it. In every well-framed constitution there must be a power to act for the public good where the law is silent, provided it be used for that end, and answerable afterward to the people’s judgment. But prerogative, as I have argued elsewhere, is a trust also. When it ceases to aim at the good of the people, or is employed to entrench the governor by weakening the means of public scrutiny, it degenerates into arbitrary power. And arbitrary power, how softly soever it walks, is worse than the state of nature, for it leaves men no known standing rule and no impartial judge, but only the will of him who benefits by his own decisions.
The suit of these news organizations is, in this light, a sober use of the remedies that belong to a free people. They do not appeal to arms, but to law; not to a mob, but to courts that profess to stand above faction. They allege that constitutional rights—set, in your system, to guard the freedom of speech and of the press—have been infringed, and they demand proof, reasons, and a ruling. This is precisely what, in my Essay on Human Understanding, I commended to all men: that assent should be proportioned to the evidence, that we require an observational chain for every claim, and that we clear our ideas before we quarrel. If the president can show that his choice served some necessary civil interest, consistent with equal freedom, his power stands justified; if not, it stands condemned as usurpation, however splendid the ceremony it ordered.
There is here, so far as appears, no question yet of dissolving government or of that last and terrible “appeal to heaven” which I reserved for a long train of abuses all tending the same way. One denied pool position is not a revolution. Yet those who treat such matters as trifles do not understand how liberty is lost. Trust is not usually broken by one great blow, but by many small precedents, each excused as convenient in the moment, until men find that the channels by which they once watched and judged their rulers have been quietly dammed. Whether this particular act will be judged a breach of that trust I cannot know. I say only that a president who presumes to be his own gatekeeper to the public eye has taken the first step toward being judge in his own case, and that is a step no free people should overlook.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — Government by consent and majority decision, with the legislative supreme but itself bound: a fiduciary power, held on trust, forfeited by breach.
- An Essay Concerning Human Understanding — Assent must be proportioned to the evidence; believing beyond one's proofs is a failure of duty, not a mark of faith.