In New York Times Co. v. United States, the landmark 1971 fight over the Pentagon Papers, Supreme Court Justice Hugo Black wrote that “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

I’m thinking about Black’s words today because President Trump’s Justice Department is invoking “national security” to justify his ban.

Katelyn Polantz and Tierney Sneed stayed up late last night waiting for the DOJ to file its response to CNN, MS NOW and Politico’s lawsuit. Check out their CNN story here.

The filing argues that “access to the White House is a privilege, not a right,” in spite of First Amendment protections around press freedom, and it includes this eyebrow-raising line:

“The president has found that plaintiffs have engaged in a number of reporting incidents that have threatened national security. Such reporting directly raises national security concerns.”

The filing cites “national security” 32 times total. “It’s an obvious post-hoc rationalization,” Nico Perrino of FIRE wrote this morning. “Trump himself said the ban was based on the ‘negative’ stories CNN, MS NOW, and Politico wrote about him.”

The DOJ is “trotting out Trump’s new favorite defense — national security!” the MS NOW legal analyst Barbara McQuade tweeted. “First the ballroom, then the arch, now pesky reporters! Didn’t work in Pentagon Papers case. Won’t work here.”

In formal letters sent to the three banned news outlets last night, the White House cited “reporting incidents” that supposedly justify the ban.

This is significant for two reasons. First: “A key claim the media companies have made in the case is that the White House violated their due process rights by failing to give them any written warning before cutting off their access and by depriving the journalists the opportunity to contest the ban,” Polantz and Sneed wrote. “The DOJ pointed to the letters to argue that the due process claims should fail.”

Second: I would argue that the articles being cited are clearly in the public interest. There are reports about the Iran war; about Trump’s ballroom-slash-bunker; and a leak probe.

Some of the reports don’t involve national security at all! The letter to Politico complains about how a recent edition of Playbook “relied on unnamed sources to paint the Republican midterm convention in Dallas as a disaster. Media reporting showed that the convention had over 100 million live stream views.”

The letter to CNN also cites a Betsy Klein story from last January, but as the lawsuit notes, the White House renewed Klein’s badge over the summer.

Here are links so that you can read the letters to CNN, MS NOW and Politico for yourself. The letters claim that the ban is an “initial decision” and can be contested until Friday.

The temporary restraining order hearing before Judge Timothy J. Kelly, a Trump appointee, is slated to start at 3:30 p.m. Eastern. CNN will have live coverage on TV and online. Kelly could rule immediately, or wait to issue a decision in writing; in the 2018 Jim Acosta case, he ruled one day after the initial hearing.

Politico senior legal affairs reporter Josh Gerstein sized up the situation this way: “Trump is seeking to overturn the key, 49-year-old court precedent that governs press access to the White House. One problem: the judge hearing the case Wednesday has no authority to do that.”

As you’ve probably already heard, Trump already sounds resigned to losing in court, since he keeps insulting the judge. In a Truth Social post overnight, he called Kelly “disloyal.” Guess that depends on your definition of loyalty.

Trump also mocked CNN’s Kaitlan Collins and labeled the banned networks “sick, treasonous, and demented.” The attorneys representing the banned outlets have already submitted his “you shouldn’t be here” comment to Collins as an exhibit to the judge.

I’m told the Reporters Committee for Freedom of the Press is about to file a friend-of-the-court brief that will show support for the plaintiffs from several dozen other news outlets…

When Trump flew back from New York last night, Fox News was the scheduled TV pool crew. But Fox did not film the president’s arrival at Andrews since this decision remains in place: “The TV pool will not be covering events designated as pool coverage of the president.”

The same holds true today. It is NBC’s day as the TV pool. When Trump gives Xi Jinping a red-carpet welcome this evening, the TV pool crew will not be there.

The White House says the arrival ceremony is open to all press, so I’ll be watching to see which media outlets decide to film it, and which do not.

The New York Times said yesterday that it will continue its photo blackout of Trump “until a court has the chance to hear arguments on the legal claims filed by those media organizations.” The Times said its decision “recognizes that barring these media outlets is unequal treatment and punitive retaliation for simply reporting the news.”

As Grace Rauh, executive director of Citizens Union, said on NY1 this morning, “the only silver lining is the solidarity that we’ve seen within news organizations…”

Paramount and the 12 state attorneys general have settled, but there’s still one big step left before the merger can take effect: the judge’s approval.

US District Judge Araceli Martínez-Olguín has scheduled a hearing for tomorrow at 2 p.m. Eastern to “address certain outstanding questions” about the settlement’s “factual and legal” basis and how it’ll be implemented.

The hearing replaces the one on Paramount’s contentious demand for the states to put up a $1.88 billion bond to cover any losses from delaying the merger. Martínez-Olguín has not yet approved the deal or lifted the order preventing the companies from closing. We’ll be listening in…

Kara Swisher might be making good on her months-long threat to leave CNN rather than work for a channel controlled by the Ellisons.

“I have asked my agent to get me out of my contract. It ends December 31st,” Swisher said on yesterday’s episode of “Pivot,” triggering an avalanche of headlines. She followed up on Threads and reiterated, “I have huge regard for the current management and staff of CNN who are amazing.”

Swisher’s issue is with the Ellisons. And because she is a part-time contributor, with a contract about to expire, she says she is walking.

Yesterday’s Swisher stories added to a flurry of speculative pieces about CNN. One Variety headline quoted a “person familiar” saying that the mood at CNN is “like a funeral.” Well, you can quote me as another person very familiar who rejects that wholeheartedly.

Yes, there’s concern about expected cost-cutting, of course, but journalists are trained not to make assumptions or jump to conclusions. A “funeral” is the ultimate jump to conclusion.

While I’m commenting on Variety’s anonymous quotes, though, I’ll say that this sentiment attributed to a “CNN staffer” is one that I have also heard from numerous colleagues: “What an enormous loss and disruption it would be to shuffle leadership for the umpteenth time in the midst — finally — of reshaping the business.”

Candidly, I hope that everyone who read about Kara Swisher intending to leave CNN also reads this terrific NYMag column about Andrew Kaczynski, the man known as KFILE.

Charlotte Klein reports that “Kaczynski’s singular talent has made him a hot commodity among news outlets, but he recently decided to stay with CNN for the next few years.”

This morning’s Page One headline atop the NYT: “Deal Deadline Raised Stakes at Paramount.”

David McCabe, Ben Mullin and Shawn Hubler have one of the most detailed tick-tocks I’ve seen about why California AG Rob Bonta backed down and how the settlement got done.

By last Friday, Bonta was pushing his fellow state AGs to settle, and some insisted on having more time to negotiate, which is why those disputes between the states leaked out over the weekend. Bottom line: “It would be very difficult to litigate without California, which had the resources and standing to continue the fight,” the trio writes. Here’s a gift link.