“We will keep listening and will let you know the headlines when we get them, let you know what’s happening,” Fox News Channel’s Bill Hemmer said reassuringly today as a trio of judges on the 9th Circuit Court of Appeals heard arguments over whether President Donald Trump’s controversial Executive Order halting travel from several Muslim counties should or shouldn’t be reinstated. While its cable news rivals ran the audio-only hearing in its entirety, FNC lightly weaved in and out of the event this afternoon before carrying it live in its final nine-minutes.
Live streamed on the court’s website, the hearing lasted slightly more than an hour and was carried live by CNN and MSNBC once it was formally called into session at 3:02 PM PT. The result being that two-thirds of the cable news heavyweights became more like radio for a portion of this afternoon.
Staying on the hearing without ad breaks, the Time Warner-owned newser ran graphics overtop the audio with photos indicating who was speaking.
Also not cutting to commercials, the Comcast-owned newser played audio of the hearing with visual of the participants. They also had split screens during some portion of the hearing with protesters holding signs that read “No Bans. No Wall.”
Fox News however did not cover the hearing live for its first hour.
In fact, besides, to quote host Bill Hemmer, “a few seconds” of audio several minutes after it had started, the network didn’t even cut to the hearing in any significance until nearly 20 minutes after it had began. Instead, FNC had Hemmer sitting in on the regularly scheduled Special Report With Bret Baier to anchor a pundit panel on the hearing.
FNC then left the matter of the hearing to cover the day’s news with topics such as the confirmation of Betsy DeVos as Education Secretary thanks to a tie-breaking vote by Vice President Mike Pence, a new settlement law in Israel, and the New England Patriots’ Super Bowl LI victory parade in Boston.
It wasn’t until 3:19 PM that Fox News truly cut to the hearing in process and then only for just a couple of minutes – “as we go to break,” to quote Hemmer again. When FNC returned from the ads, Hemmer gave a summation of what was going on at the hearing before going to another studio panel. Throughout the rest of the hour, FNC would cut back periodically to delayed audio from the hearing for a few minutes here and there.
Not that the Rupert Murdoch-run cabler didn’t have words on the matter.
“This circuit … which is the most reversed in the country by the Supreme Court, and tonight they sounded a lot more like ideologues than they did like justices to me, knowing the facts of this case,” Laura Ingraham told Hemmer as the hearing was going on.
It was only in the 4 PM PT slot that FNC went to live coverage of the hearing.
A ruling is not expected tonight from presiding Judge Michelle Friedland, Judge William Canby Jr, and Judge Richard Clifton. In a statement earlier Tuesday, the 9th Circuit said the much-anticipated ruling would come “probably this week” on the motion to stay the temporary restraining order on the so-called travel ban, pending appeal. “Thank you counsel for your very helpful arguments, this matter is submitted,” said Friedland at the conclusion of the hearing at 4:09 PM PT. “We appreciate the importance and time sensitive nature of this matter and will endeavor to reach our decision as soon as possible, “ she added.
Cutting in to ask questions, seek clarification and challenging the lawyers assertions throughout the hearing Tuesday, the three judges heard from Washington state Solicitor General Noah Purcell and the DOJ’s Special Counsel to the Assistant U.S. Attorney General August E. Flentje.
“The President’s determination that a 90-day pause was needed …was plainly constitutional,” Flentje told the judges. “The District Court’s order, which contained no assessment of the legality of the order, was in error and we encourage the court to stay,” he added on the phone from D.C.
“I think it would be better procedurally and more keeping with the court’s precedent to send the case back to the District Court …to allow us to put in the evidence that we would to support the preliminary injunction motion and to allow the District Court to issue a preliminary injunction ruling,” Purcell said in his argument, which came after Elentje’s remarks.
Trump earlier today told reporters at the White House that the battle over the order, which put a 90-day halt on citizens from Iran, Iraq, Sudan, Syria, Libya, Somalia and Yemen from entering the U.S, could go all the way to the currently ideologically deadlocked Supreme Court
On February 3, a day after Washington state and Minnesota filed an amended complaint against Trump’s E.O., Seattle-based federal Judge James Robart issued a nationwide TRO on the then week-old order. Since then, nearly 100 tech companies like Netflix, Google and Apple have publicly come out against the ban, saying it “threatens companies’ ability to attract talent, business, and investment to the United States.” More than a dozen states including New York, California, Illinois and Virginia plus the District of Columbia filed briefs on February 6 in support of Washington state and Minnesota’s anti-ban position. As has become the norm in this abnormal administration, President Trump took to social media repeatedly and slammed “the so-called judge.”
Signed on January 27 by Trump with great fanfare but seemingly little foresight of the fallout that would almost immediately ensue, the Executive Order reportedly took most of the government by surprise as well as lead to detentions and protest at airports nationwide and lawsuits within hours. There was also political chaos and high profile firing of the Acting Attorney General when Obama appointee Sally Yates told DOJ lawyers not to defend the travel ban.
Today in testimony on Capitol Hill, Homeland Security Secretary John Kelly admitted he wished his department had been given more time to determine who and how the action would effect and discuss the matter with Congress – and it is his department that is ultimately responsible for the travel ban. In an effort to distract attention from the White House and his POTUS boss, Kelly told members of Congress that “this is all on me.”
Deadline’s Erik Pedersen contributed to this report