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The White House
Office of the Press Secretary
For Immediate Release

Press Briefing by Press Secretary Josh Earnest, 3/1/16

James S. Brady Press Briefing Room 

1:03 P.M. EST

MR. EARNEST:  Good afternoon, everybody.  Nice to see you all.  I do not have any remarks at the top so we can go straight to questions.

Darlene, do you want to start?

Q    Sure.  Thank you.  

Q    I predicted you’d call on her first.  (Laughter.) 

Q    He predicted you’d call on me first.  What more can you tell us about the meeting the President had with the leaders from Congress over the Supreme Court?  Senator Reid said that a lot of time was spent talking about basketball and other stuff-- (laughter) -- and he said the meeting didn’t last very long.  How long did it last?  Is he accurate?  Was there any substance discussed?

MR. EARNEST:  I don’t have a sense of exactly how long it lasted.  We can look into that for you.  I did have an opportunity to visit with the President after the meeting concluded, and the President’s view of this situation is that any President has a responsibility to consult intensively with Congress before making a nomination to a lifetime appointment on the Supreme Court.  And when the two previous vacancies have arisen during his vacancy, the President, after a couple of weeks, invited the chair and ranking member of the Senate Judiciary Committee and the Democratic and Republican leaders in the Senate to come and have a discussion about the process, about the way the President was thinking about whom to choose for this important appointment, and the President felt it was important, even in an election year, to continue that consultation.

And the meeting was pretty straightforward.  No one represented that he was about to change his position on something.  But the President did use the opportunity to lay out his thinking, and he gave everyone in the room -- Democrats and Republicans -- the opportunity to put forward their own suggestions for potential Supreme Court nominees.  The President didn’t guarantee that he would choose that person, but the President did indicate that he would take seriously any recommendations that either Democrats or Republicans had to put forward.

After all, we’re talking about a group in the Oval Office that, collectively, maybe even has a century of experience of considering Supreme Court nominees and confirming them -- that when you sort of add up everybody’s role here, there’s a lot of history.  In fact, that history dates back to 1988, the last time that the United States Senate voted to confirm a Supreme Court nominee, and both Senators McConnell and Grassley supported Justice Kennedy’s nomination.  And Vice President Biden presided over that process as chair of the Judiciary Committee.  

So we certainly know how this process has worked in recent history.  We know how it worked the last time that this situation occurred -- that the President of the United States was asking a Senate that was led by the other party to confirm a nominee in an election year.  And that resulted in Justice Kennedy’s overwhelming confirmation with bipartisan support.  And we believe that this process should conclude the same way.

Q    You mentioned that the President gave both sides an opportunity to suggest names.  Were any names suggested from either side?  

MR. EARNEST:  I’ll let the individual senators read out their sides of the meeting.  I can tell you that the offer was not a one-time-only offer, that if there are individuals members of the Senate who, after a good night’s sleep, wake up tomorrow morning with a good suggestion and a desire to genuinely engage in the process, then they certainly know how to reach the White House and they know how to get the President on the phone.  And if they want to come back down to the Oval Office and talk about it in person, I’m confident we could arrange another meeting.

The President is serious about this consultation, and we’d like to see Republicans engage in it seriously, too.

Q    So you have a vacancy on the Court.  The President came out and said he’s going to nominate.  Republicans said, we’re not going to do anything.  You’ve now had this meeting today.  What is the next move in this process, and who’s responsible for making it?

MR. EARNEST:  The next move would be for Republicans to avail themselves of the opportunity to continue consulting with the President.  If they choose to do so, they will have that opportunity, and that’s an opportunity that will endure.

Meanwhile, the President and his team will continue with the process that has been running here at the White House now for more than a week for the President to consider the background and record of potential Supreme Court nominees.  And the President will continue to do that work with the goal of eventually putting forward a nomination.

Q    I wanted to ask you about one other thing that happened yesterday -- late yesterday after the briefing.  A magistrate judge in New York City ruled that the Justice Department cannot force Apple to provide the FBI with access to data on an iPhone in a drug case in New York City.  Is there any reaction from the White House to that judge’s ruling, and any concerns about how it might influence the bigger debate that’s going on between DOJ [sic] and the Justice Department over the San Bernardino --

MR. EARNEST:  I don't have a reaction to the ruling in that specific case.  I've obviously read the public reports about it, but I don't have a detailed knowledge of the facts of the case.  And we've made quite clear that the discussion that we've been having about the San Bernardino case applies specifically to this scenario where a terrorist who is no longer living was using a phone that was owned by the local government, and in pursuit of their independent investigation, law enforcement professionals have concluded that information that may be contained in that phone could be useful for their investigation.  

Now, the President has made clear that the investigation is a priority because we want to learn as much as we possibly can about the individuals who carried out this terrorist attack.  We want to learn as much as we possibly can about people that they may have been talking to or communicating with here in the United States or around the world.  We also want to learn as much as we possibly can about what may have prompted them to carry out these terrible attacks that resulted in the death of 14 innocent patriotic Americans and caused the injury of a couple dozen others.

So we've been clear about what our interest is in this specific case.  As a legal matter, my understanding is -- you should confirm this with the Department of Justice -- is that as a legal matter, there’s no -- that this ruling in New York does not have any impact on the ongoing situation in San Bernardino.  But that's essentially our position.


Q    Going back to the Supreme Court, a quick question.  Did President Obama put forward any names that he might be considering during this meeting?  And then also, I guess to the larger point, President Obama has said that he doesn’t think that the position that the Republicans are taking that they won't hold any hearings, they won't take any vote, that that won't be sustained, that they won't be able to necessarily hold on to that position.  And I guess the idea is that they’ll face so much public pressure that they will have to back down.  I guess, does the White House still feel that public pressure is going to be such that McConnell and Grassley will have to back down?  And what provides that confidence?  And seemingly, is that the only option that you guys have, is public pressure to make them back down from their position?

MR. EARNEST:  Well, Ayesha, I don't have a more detailed readout than I've shared this far.  I don't know whether or not the President put forward any potential nominees in the context of that discussion.  But even if he did, I probably wouldn't be in a position to float those names here publicly.

More generally, our intent is to continue to fulfill the President’s constitutional responsibilities.  The Constitution of the United States says that the President of the United States shall appoint someone to fill a vacancy on the Supreme Court.  The President is going to fulfill that responsibility.

The United States Senate also has a constitutional responsibility when it comes to vacancies on the Supreme Court.  They have a responsibility to provide their advice and consent to the President of the United States.  It doesn’t say that members of the Senate should consider a nominee based on whether or not that person was at the top of their list of potential Supreme Court nominees.  The Supreme Court suggested they should consider their background and their record -- I’m sorry, the Constitution suggested they should consider their background and record to determine whether or not they could serve on the Supreme Court with -- in a way that lives up to the American people’s expectations.

So when it comes to our strategy, our strategy is simply that the President will fulfill his constitutional responsibility and we're going to appeal to members of the United States Senate that they should put their constitutional responsibility ahead of any sort of political calculation that their party leaders may be making. 

Q    So it’s a hope that they will just adhere to what you feel is a constitutional responsibility?  It’s not -- there’s no plan to do anything beyond that?

MR. EARNEST:  Well, it’s more than my hope.  It’s what it says in the Constitution.  It’s also consistent with past precedent.  The last time that there was a President of the United States that was challenging the -- calling on the United States Senate to confirm a Supreme Court nominee in an election year, it was 1988.  You had a Republican House; Democrats were in charge of the Senate.  And Justice Kennedy was confirmed with overwhelming Democratic support to a lifetime appointment on the Supreme Court. 

And so there is recent precedent to consult.  There certainly is the United States Constitution to consult.  It’s clear exactly what the Senate’s responsibilities are.  We’ve seen from Democrats that they intend to fulfill their responsibilities.  And it’s up in the air about whether or not Republicans will follow through on their threat not to engage in their constitutional duties, not to fulfill those duties.

And ultimately they’ll have to decide their own course.  I don't expect that they're going to change their minds just because I said so.  They made clear in the meeting with the President that they're not going to change their mind just because the President says so.  Rather, they will change their mind, if they do, based on an appeal to their constitutional duties.  And that's certainly the appeal that we're making.

Q    On North Korea, the U.N. is supposed to be taking up a vote on those sanctions that the U.S. and China have agreed to.  Does the White House have any concerns about the vote, or any expectations about the vote?  And then also, when you talk about these sanctions -- I know you've talked about them before -- but what is it about these sanctions that you think will kind of rein in North Korea where other sanctions have not?

MR. EARNEST:  These are all good questions.  I got a short briefing on where things stand in the process.  My understanding is that the United States has put forward a formal request -- or yesterday put forward a formal request for a Security Council vote on a draft sanctions resolution.  The United States yesterday called for that vote to take place today.  

As a part of -- sort of a matter of routine, any member of the Council can request a 24-hour review, meaning they can essentially say, let’s wait 24 hours, postpone the vote for 24 hours, so that we can get a chance to review the resolution.  That's what the Russians did yesterday.  So at this point, the Security Council appears to be on track for a vote on Wednesday. 

Now, as it relates to the substance of the sanctions themselves, as we’ve noted, and as we discussed a little bit yesterday, this package of sanctions goes farther than previous packages have.  And it goes farther in a variety of ways.  One is it would ensure and require the inspection of all cargo going into and out of North Korea.  For the first time, it would prohibit all small arms and other conventional weapons from being sold to the North Koreans.  

It would, for the first time, impose broad sectoral sanctions on sectors, particular sectors of the North Korean economy such as it is.  We know that the North Korean economy is not particularly advanced because of other sanctions that have been imposed on them.  It means that they are particularly reliant on sectors like coal, iron, gold, titanium, and rare earth materials.  Those are exactly the sectors of their economy that would subjected to these broader sanctions.

This is important for two reasons.  One is we know that the North Korean government uses revenue from these sectors of their economy to bankroll their nuclear and missile programs.  So that certainly is one way that we can counter their destabilizing activities.  The other thing that we know is that it’s the North Korean ruling elite that benefits financially from these sectors. And imposing these sanctions will have an impact on the financial well-being of the North Korean elite.  

Will that be enough to get them to start changing their behavior and change their strategic calculation?  That remains to be seen, but certainly applying more pressure to the North Korean elite is one reasonable suggestion for trying to do that.  We surely know that the North Korean people have suffered for far too long because of the decisions that were made by the North Korean government, that their pursuit of nuclear weapons and their willingness to isolate that country from the rest of the international community has had a devastating impact on the North Korean population.  And that’s why this sanctions regime is targeted more specifically at the North Korean elite.


Q    Josh, I want to take another crack at this Supreme Court issue in a different way.  Since this is a constitutional issue, with the fact that the Republicans are refusing to meet the potential nominee and also have a hearing, what is the White House Counsel doing as it relates to this?  How are they handling this matter?

MR. EARNEST:  Well, Neil Eggleston is the President’s counsel here at the White House.  He’s got a whole team of lawyers who are engaged in the process of providing the President information that’s relevant to his search for a Supreme Court nominee.  As a part of this process, the President will consider and take a look at the public writings, the public record of individuals who could be Supreme Court nominees.  And there’s a lot of legwork involved, and lawyers here at the White House are involved in making sure that the President can have access to this information and that he has all the information that he needs in a timely fashion to make a decision about who is the best person to serve on the Supreme Court.

Q    So when you’re looking at that, tell me about how the Counsel’s Office is also looking at possible punishments or being penalized for not following the Constitution?  Because I asked Harry Reid, Senator Harry Reid, if the Constitution isn’t followed, what next?  He said, you know, the American people will vote.  But what is the White House finding that could be possible punishment or a way to get around this?

MR. EARNEST:  Well, April, again, as I mentioned to Ayesha, our case to Senate Republicans is that they should allow their constitutional responsibilities to supersede their political calculations.  In effect, they should do what the Constitution tells them to do, not what party leaders tell them to do.  And that’s the case that we’ll be making to them, and that is consistent with the reading -- with anybody’s reading of the Constitution.  It’s consistent with past precedent.  After all, every Supreme Court nominee since 1875 has gotten either a hearing or a vote -- unless, of course, the President withdrew that nominee.  

That’s why it would be unprecedented for President Obama to put someone forward and have Republicans refuse to meet with that person, refuse to host that person for a courtesy visit, to refuse to hold hearings.  All that would fly in the face of decades of tradition.  Most importantly, it would fly in the face of their constitutional responsibilities.  

Q    Remembering that a couple of months, maybe a year or so ago, we were hearing on the Hill about possibilities of a lawsuit against the President from Republicans to the President for his appointments.  Now, in some of the things that -- 

MR. EARNEST:  They’ve filed so many lawsuits it’s hard to keep track.

Q    Okay.  And with that, is this administration -- is the Counsel’s Office looking at possible litigation when it comes to this issue, the Constitution not being followed?  

MR. EARNEST:  I’m not aware of any work in that regard.  I don’t know, frankly, if that’s even an option.


Q    Just to be clear -- I mean, you’ve made clear everyone’s responsibilities here, but is the President still optimistic that Republicans will ultimately have a change of heart and consider his nomination?

MR. EARNEST:  Well, I think the President is realistic that there are a lot of politics being played here right now.  And it’s a presidential election year, so that’s not particularly surprising to anybody who works in this building.  The question I think really is about -- and it’s an open one -- about whether or not Republicans will put their constitutional duties ahead of their political calculations.  

And it’s clear what the Constitution says they should do.  If they want to consider precedent, it’s clear what they should do.  If they want to consider what can be done to protect the long-term health of the Supreme Court, it’s clear what they should do.  Because what they are promising to do right now would, in an unprecedented way, escalate the degree to which the Supreme Court is imbued with partisan politics.  And the truth is, the framers of our Constitution designed a system that would insulate the Supreme Court from those kinds of politics to a large degree.  And the President doesn’t believe that that kind of escalation is in the best interests of the republic.

Q    And on another topic, a member of the Secret Service yesterday got into quite a physical altercation with a Time photographer at a Trump rally, grabbing his neck, slamming him into the ground.  Are you aware of this incident?  And do you feel this response was appropriate?

MR. EARNEST:  I’ve seen some of the footage and obviously the news coverage of this incident.  I haven’t been briefed on the details, and I know that the Secret Service and local law enforcement are working to learn more about what exactly transpired there.

But I think what I can say just generally is that all of us on a regular basis benefit from the courage and professionalism of the men and women of the Secret Service.  After all, they keep us safe.  They certainly keep the President safe.  They protect our workplace.  And we all benefit from the professional way that they do their jobs day in and day out.  That doesn’t get a lot of attention, and that’s okay because that’s their responsibility.  They hold themselves to an extraordinarily high standard.  We certainly hold them to a high standard.  And far more often than not, the men and women of the Secret Service live up to that standard.  And we’re certainly grateful for their service for that reason.  But I know that the Secret Service has also indicated that they’ll take a look at this particular situation and they’ll take appropriate action once the facts have been gathered.

Q    I guess more broadly on this, there seems to be a big difference between how the press is treated here and at the President’s events versus on the campaign trail.  I mean, at Trump events, the press is forced to stay physically in a pen.  Are you at all concerned that First Amendment rights are being violated here?

MR. EARNEST:  I haven’t had the privilege of attending a campaign event hosted by the Trump campaign.  (Laughter.)  I understand they’re pretty entertaining. 

Look, each campaign will have to sort of make their own decisions about how they want to handle press access to their events.  Generally, my limited experience in campaigns is that the reason that you hold public events is so the public can have an opportunity to be informed about your message and what’s being discussed, and an important part of that is not just inviting a big crowd, but also inviting the news media to capture what happens so that that can be -- so people can be educated about what happens.

I understand the need to keep order.  But I also understand that most candidates are pretty proud of the people who are showing up at their events and they're eager for those who are attending the event to actually talk to the news media and talk about why they're attending that event and why they're supporting that candidate.  And I’m not sure why a candidate might be embarrassed by his or her supporters, or embarrassed by who might be attending his event.  But you should check with them.


Q    So aside from the basketball talk, it sounds like this meeting went pretty poorly, or maybe horribly is a better word.

MR. EARNEST:  I wouldn’t say that at all.  Again, I think the meeting was actually pretty straightforward.  No one represented that they were on the verge of changing their opinion.  But the President takes quite seriously the responsibility that he has to consult with members of Congress in both parties as he makes a really important decision.  The Constitution vests with the President of the United States the authority -- in fact, the Constitution says the President shall appoint a nominee to fill the vacancy in the Supreme Court.  And the President believes that it’s his responsibility to work with the legislative branch to do that.  

And that's why the White House has contacted the office of every single member that serves on the Judiciary Committee.  I also feel like it merits pointing out this isn’t the first time that the President has talked to Leader McConnell and Chairman Grassley about this vacancy.  In fact, this is the second time in just a couple of weeks that they’ve had this conversation.  And I certainly wouldn’t rule out additional conversations.  And in fact, if Leader McConnell or Chairman Grassley want to have an additional conversation or more conversations, particularly with regard to potential nominees, we're open to those conversations, as well. 

So this is part of the process.  Just to go more directly to your question, though, Michelle, we certainly would have liked Republicans to have handled the meeting differently.  We certainly would welcome greater engagement on the part of Republicans, a greater, clearer willingness to put their constitutional duties first, at the top of their list of priorities, and resist the urge to allow this process to be so deeply infected and corrupted by partisan political gamesmanship. That doesn't advance the process.

And, look, the last thing I’ll say about this is we know that both Chairman Grassley and Leader McConnell have decades of experience of handling Supreme Court nominees and Supreme Court confirmations, so they understand the role that the Senate has to play in this process.  They also understand how important it is.

We’ve heard from them on a number of occasions.  Over the course of the last seven years, we’ve seen those two men speak publicly about a range of Supreme Court decisions -- some they agreed with, some they vigorously disagreed with.  But all of them -- in each situation both men understood the stakes here.  They also understand that it would be unprecedented for the modern Supreme Court to go for more than a year with a vacancy waiting to be filled.  So they understand the stakes.  They understand the situation.  They understand the debates, and they certainly understand what happened last time the Congress was asked to vote on a Supreme Court nominee in a presidential election year.  In fact, they both voted yes.

Q    Given that they were so adamant going into this meeting -- they’ve both written more than one op-ed stating their case, Senators Reid and Leahy seemed pretty frustrated coming out of there -- did the President think that he was going to change their minds?  Or was this -- 

MR. EARNEST:  No, the President did not -- the President’s goal in the context of this discussion was to continue to consult the United States Senate about who should fill the vacancy on the Supreme Court.  

The President believes that that consultation is important. It’s a priority for him.  It’s been a priority for him the last two times that he has had fill a vacancy on the Supreme Court.  And it’s important to him this time.

Q    But in this case, it seems pretty perfunctory, though, given that the two Republicans he’s consulting with are absolutely adamant and have been.

MR. EARNEST:  Well, again, that is a choice that's made by Republicans.  The President came to the meeting and showed up today with the intent to have a serious conversation.  And the President did lay out in some detail his thinking about how this process should play out.  He laid out in some detail how he will -- how he’s thinking about who should be appointed to fill this vacancy.  And he continues to welcome input from Democrats and Republicans on that process.

And, look, I’ll just point out, in 2009, the first time that the President had to fill a Supreme Court vacancy, the President took very seriously his responsibilities to consult with members of Congress, and Senator Grassley is quoted publicly saying that after serving in the United States Senate for decades, it was the very first time he could remember a United States President asking him for a suggestion about who should be nominated to serve on the Supreme Court.  So then-Senator Grassley I think said that as a compliment to Senator Obama.  And, look, I don’t know whether he intended it that way -- you can ask him -- but the point is I think that’s an indication that Chairman Grassley understands how important this consultation is and he appreciates the fact that President Obama had reached out to him then.  And the President was doing exactly the same thing today.

Q    He doesn’t hold it important enough, obviously, to even bring this potential nominee up for hearings.  But the President described Republicans’ stance last week I think it was as “sheepish” when he talked to them one on one in these phone conversations they had.  Would he or you still describe then as sheepish, given this meeting that happened today?

MR. EARNEST:  Well, I don’t have a more detailed readout of the discussion than I had today.  And I don’t want to leave you with the impression that the President was necessarily talking about Leader McConnell or Chairman Grassley.  He may have been; I don’t know.  The reason we don’t know that is because the President has actually had the opportunity to talk to a number of Republicans about the vacancy on the Supreme Court.  So I wouldn’t automatically assume that the President was referring either just to or included Leader McConnell and Chairman Grassley in that comment.

Q    Okay.  And last week, when I asked you if you felt like there was -- given everything that’s been said already, do you think that there is still a chance that this will make it to the hearing stage, you said “absolutely.”  Do you still feel that there is a chance of that?

MR. EARNEST:  Absolutely.  It’s pretty clear, based on what the Constitution says, based on recent precedent, based on the obligations that Leader McConnell and Chairman Grassley are intimately familiar with.  So we’ll continue to appeal to the notion that they have a constitutional duty to move forward.  It’s clear -- 

Q    I guess I would say then why do you feel like these guys are going to change their minds now after they’ve come out  -- I guess from your -- you see their stance as somewhat damaging and that the public is going to be opposed to that, but they’ve already done that damage then by saying, we refuse to do this.  Why do you think that there’s some chance that they’re going to change their tune?

MR. EARNEST:  Well, again, I think most of my confidence rests in the clarity of the Constitution, the clarity of the precedent, and the clarity of Leader McConnell and Chairman Grassley’s own knowledge of their responsibilities.  

I think it’s too early to tell at this point exactly what sort of impact the public debate is going to have on this.  My guess is it will play differently in different states.  But we’ve heard comments from others who value the institution of the United States Senate and who value the institution of the Supreme Court who have expressed concern about this process and about the Court in particular being politicized.  And if Republicans follow through on what they’re promising to do right now, it would escalate, in an unprecedented way, the degree to which the Supreme Court is politicized.  And that’s not good for the country.  It’s not good for Democrats or Republicans.  It’s inconsistent with the Constitution.  It’s inconsistent with past precedent.  It’s inconsistent with the way that Leader McConnell and Chairman Grassley have handled their responsibilities in the past.

So, again, that’s the case that we’ll make, and it will be up to Senate Republicans to decide how they react.


Q    Thanks, Josh.  Senator Reid said outside that the Vice President made reference in this meeting to his 1992 speech, what they’re calling the so-called “Biden Rule,” and that he actually read passages of his speech to the Republicans.  Can you shed any light on that?  Did that happen?

MR. EARNEST:  Well, I don’t have a detailed understanding of the exchange, but it sounds like what you’re describing is that Vice President Biden read the same passage that I’ve read from here a couple of times about how, in 1992, he made clear that if the President was willing to consult with him that he’d be open to supporting the President’s nominee.  He was saying that about a Republican President, President George H.W. Bush.  That was relevant because at the time, then-Senator Biden happened to serve as the Chair of the Judiciary Committee.  

But, look, I think the relevant precedent here is for us to consider what happened the last time that a President of the United States was asking the United States Senate to confirm a Supreme Court nominee in a presidential election year.  That year was 1988.  There was a Republican in charge of the White House; there were Democrats in charge of the Senate.  And the Senate followed through in bipartisan fashion with confirming Justice Kennedy to the Supreme Court.  The precedent is crystal clear.  And we’re just asking Republicans to do exactly the same thing.

I raise all that because at the time, Senator Biden was also the chair of the Judiciary Committee, so he had an important role in terms of presiding over that process.  He ensured that Justice Kennedy got a fair hearing.  He participated and actively supported a timely yes or no vote, and he voted yes.  Again, we’re just asking Republicans to do exactly what then-Senator Biden did.

Q    I just want to be clear -- are you confirming that that did occur in that meeting, or you don’t know?

MR. EARNEST:  I don’t know whether or not -- that occurred or not.  


Q    Thank you, Josh.  Two different things.  A cybersecurity client asked if the President feels the U.S. is fully prepared for “a massive attack” on our power grid, financial network, et cetera -- emphasis on the phrase “fully prepared.”

MR. EARNEST:  As you will note from our budget proposal that we rolled out just a few weeks ago, it includes a substantial enhancement of programs and funding to strengthen our cybersecurity in this country.  There are a variety of steps that can be taken that relate to protecting government networks to working with the private sector to fortify key private networks. There are also some common-sense steps that American citizens can take to protect their own privacy and to protect their own cybersecurity.

So there surely is more that we need to do in this country. Unfortunately, as I’ve pointed out, Republicans, before this budget proposal was even put forward, basically canceled hearings.  They said that they wouldn’t meet with the President’s budget director to discuss a budget that included a significant ramping up of our cyber defenses.  

That’s rather unfortunate.  I think it reflects a lack of seriousness on the part of Republicans in Congress for confronting this issue.  And again, as I promised -- I mentioned this a couple of weeks ago -- at some point, sometime in the next 11 months that I’m doing this job, somebody out there is going to ask me about a specific cyber intrusion incident that either had consequences for the government or for a significant private sector company, maybe even a media company, and what I will observe is that while the President and his team put forward a thoughtful proposal for how we could improve cyber defenses in this country, Republicans refused to even discuss it.

Q    Shifting gears, I’m not sure Mr. Trump understands that Presidents can't change laws on their own, but this talk from him about weakening libel laws so we could better control the press  -- does the White House have a reaction to that?

MR. EARNEST:  I think my reaction is the same as yours, which is I have no idea what he’s talking about.  (Laughter.)

Q    The other thing about that, about press, the independent group, Reporters Without Borders, says that in terms of press freedom, the United States has now fallen to 49th out of 180 nations.  And it actually lays the blame for some of that fall -- not all of it, but some of it -- on the Obama White House for what it calls harassment, government harassment to journalists.  It cites the James Risen, New York Times case, and such.  Does the White House bear any blame for the fall -- in what appears to be a fall in press freedom in this country?

MR. EARNEST:  Obviously, I strenuously disagree with the argument that Journalists Without Borders had made in that report.  I’ve observed on many occasions that it’s the responsibility of the independent media in this country to press those who are in positions of authority for more access and for more transparency.  And that's part of the process, and I respect that role.  In fact, it’s critical to the success of our democracy for independent professional journalists to play that role.  

It sounds to me that that's exactly what Reporters Without Borders is doing by putting forward a provocative analysis like this to challenge and put pressure on those who are in power.  And I certainly respect their desire to do that.  But I think, on the merits, when you consider the climate and the environment in this country in which independent journalists have the opportunity to do their work, I just don't think that withstands much scrutiny.

Q    It’s also been noted, though, that reporters continue to not have protection under federal shield laws that have sent maybe -- these eight whistleblower cases that the administration has prosecuted for that reason.  Should reporters have protection under the federal whistleblower laws? 

MR. EARNEST:  I’ll admit, Paul, it’s been a while since I’ve reviewed our position on that particular policy question.  But let me take a look into it, and we can certainly get you an answer.


Q    When you answered about Donald Trump, you were a little dismissive about the question about what he said about libel laws and so forth.  And I wonder, are you concerned that Democrats may still be very dismissive of Donald Trump?  Do you take him seriously as a potential nominee and a potential opponent in November?

MR. EARNEST:  Well, it certainly is -- again, you guys have written about this -- all the information I get about this is from what I read from all of you.

Q    No, no, you get much more information from other --

MR. EARNEST:  About Donald Trump’s campaign?  I don't mean to disappoint you all, but I don't really have any -- I don't know anybody that works on the Donald Trump campaign.  I don't have any special sources over there at all.

But look, to go to your point, it’s clear that he has built a large following in the Republican Party and he’s getting a lot of support.  And again, based on the results from the states that have hosted elections so far, and based on the way that he appears to be lining up support from members of -- at least some members of the Republican establishment, that he does have the inside track to be the Republican nominee.  And it certainly requires thinking back to the amount of time and energy that this President devoted to becoming the Democratic nominee in 2008.  That's no easy task to win a party’s nomination.  And so certainly we are keenly aware of the success that Mr. Trump has had out on the campaign trail.

But he’s done it in a way that has raised concerns that I’ve discussed quite extensively in the past.  And I have no doubt that if he is the Republican nominee and when we get to the general election, we’ll have an opportunity to have a rather robust political debate about the stark difference in values and tone and priorities that Mr. Trump presents.

Q    On the Supreme Court thing, has there been any -- have you gotten any indication from any Republicans that this wall that the leadership has put up, that there’s any softening behind that wall?  Have you got -- in the President’s communications, the White House communications with other members of the committee, for example, have you been told anything that suggests that there is a possibility that the leadership is not letting on to, there’s some softening on that?

MR. EARNEST:  Well, Ron, as I’ve alluded to, there have been a lot of conversations not just at the presidential level with people on Capitol Hill, but many more conversations that have taken place at the staff level.  I don't think I can account for all of those conversations.  But I think what I can do is sort of point to some public statements that we’ve seen from people like Senator Kirk and Senator Collins, who have indicated an openness to giving the nominee a fair hearing and a timely yes or no vote.

There are other members who have indicated their reflexive opposition to anybody the President puts forward.  But at least in some cases, they’ve said that they didn't mind holding a vote on it.  So as unreasonable as that position is -- to basically turn down anybody that the President may consider -- at least they’re indicating a willingness to engage in the process.

But we haven’t seen that from Leader McConnell or Chairman Grassley yet.  And they haven’t shown that willingness, despite the fact that they have a constitutional obligation; despite the fact that there is a clear precedent here; despite the fact that they know exactly how important this is.  But ultimately they’ll have to decide.

Q    Everyone knows how important this is, and everyone knows why the Supreme Court issue is such a big deal, and why all the other precedents are somewhat -- perhaps not relevant because of the ideological shift in --

MR. EARNEST:  Well, I disagree with that premise.  And I apologize for interrupting you, but I think it is important to note that there is plenty of speculation about what impact the President’s nominee could have on the ideological balance of the Court, but there is no reference in the United States Constitution for a separate process if there is the perception of the conclusion reached by some senators that this could have an impact on the ideological balance of the Supreme Court; in the same way that there’s no exception written into the Constitution for if this discussion is taking place in an election year.  The President has very clear responsibilities, and the Senate has very clear responsibilities.

Q    So in terms of what the President is going to do, given the stakes, would you anticipate that there will be a very public campaign by the President directly to the American people to get his point across?  Because clearly he hasn’t.  As you said, no minds were changed and no positions were changed in this meeting with the leadership.  And perhaps sooner rather than later -- you've said he’s not going to endorse a candidate, and so on and so forth -- but given the stakes, given where we are, wouldn’t that -- I’m sure a lot of people out there who are advocating -- the President’s supporters want him to be out there doing something sooner rather than later -- do you think that they will see that?  Or will we see the traditional role that the President plays in reelections after the convention, so and so forth?

MR. EARNEST:  When it comes to the Supreme Court, I would anticipate that the President will make a public case for his nominee.  But at this point, the stage in the process is the President is committed to consulting with the United States Senate, both Democrats and Republicans, and the President is carefully considering the record of potential nominees.  That's the stage in this process.

As we move forward, I certainly wouldn’t rule out the President playing a more high-profile role in advocating for his nominee and calling on the Senate to put their constitutional obligations ahead of their political considerations.

When it comes to the general election, though, I certainly think you can expect the President, over the course of the summer and fall, campaigning in support of the Democratic nominee -- whoever that is -- and his advocacy will be rooted in highlighting the difference in values and priorities and principles of a Democratic nominee who is committed to continuing the progress that we’ve made over the last seven years of digging out of the worst economic downturn since the Great Depression, and comparing that to the agenda put forward by Republicans to actually roll back that progress by going back to the rules that were in place in advance of the last economic downturn.  And that will be the substance of -- the essence of the debate, and it’s one, frankly, that the President looks forward to engaging in.

Q    And lastly, can you tell us anything more about some of these various advocacy groups that are trying to push for one nominee or the other, or be involved in the process -- the nomination process for the Supreme Court?  To what extent -- what’s happening between the White House and those groups, and how transparent is the White House going to be about what you’re doing with these other groups?  I know that a number of former officials were involved, and so on and so forth, but is that intensive planning underway?  Are the meetings underway?  What is the extent of that activity?

MR. EARNEST:  The truth is the engagement on the part of the White House with outside organizations that are interested in being involved in the political process is something that happens every day on a wide variety of issues.  Obviously the Supreme Court is different and unique because it’s not something that comes up every year, it only comes up every once in a blue moon. And sometimes, like this year, it can come up unpredictably, without any advance warning.

And obviously, the way in which that situation is resolved has significant consequences for our country.  So it’s natural that there would be lots of outside observers keenly interested in how the process moves forward.  And consistent with the way that we engage with outside groups on issues like immigration reform, on cybersecurity, on the Trans-Pacific Partnership, we’re going to engage with outside groups as the President makes a decision about who to put forward for a nomination to the Supreme Court.  But we’ll also continue to engage in those conversations even after that nominee has been put forward in terms of making the case that the Senate should fulfill its constitutional obligations.


Q    Thanks, Josh.  Today is Super Tuesday.  Voters in more than a dozen states will cast ballots or attend caucuses.  It also means that, two weeks from today, voters in Illinois are going to host a primary.  Do you have any guidance on how the President will participate in that election?  Will that be in-person or absentee?  And will we know his choice in the Democratic primary on or before or after that date?

MR. EARNEST:  The President will cast an absentee ballot.  That’s what he has done in previous primaries.  And I don’t know whether or not that ballot has been submitted at this point, but that’s how he will participate.  At this point, there is no plan to make the President’s preference public, but if that changes we’ll be sure to let you know.

Q    One more on the Secret Service incident yesterday.  You seemed to take a dig at the Trump campaign for confining journalists at their rallies.  But if the reports are correct, what appears to have happened here is that an agent of the government and an employee of your administration acted to keep a journalist out of an area where the public at large was generally allowed.  I mean, if Trump’s security wants to ban journalists from walking around, that’s sort of their business, but should an agent of the government be acting in this way?  And should there be a review about the rules governing Secret Service in campaign settings?

MR. EARNEST:  Byron, I’ll tell you that the current situation that attracted so much attention yesterday is under investigation.  And the Secret Service is working with local law enforcement to try to get to the bottom of what exactly happened. And the leadership of the Secret Service has indicated that they’ll take appropriate steps based on the conclusion of that investigation.  So that’s appropriate.

As it relates more generally to the policies that are put in place by the Secret Service, I’d refer you to them for what role they have to play here.  There are a variety of considerations. Some of those considerations, Byron, relate to journalists are often screened prior to entering a large event like that, and that means that because they are screened, they are then given special access.  For example, they’re allowed to go either close to the stage or, in some cases, even up on stage at the time.  That would explain the need to not allow them to mix regularly with the crowds that we can make sure that the proper security precautions have been in place.

I, frankly, do not know whether or not that was relevant to yesterday’s situation.  But that would be an explanation for why, in some circumstances, a Secret Service officer would have to limit the movements, or at least limit the press’s interactions with the public to ensure that future special access that they get to the candidate or other protectees can still take place.


Q    Thanks, Josh.  I want to ask about a different issue, which is the transition.  Congress passed a bill yesterday that requires the administration to set up some councils within six months of the election to help the staff and agencies turn over. I’m wondering if the President is going to sign that law, and if you can give us just a general update on the transition plan that’s going on here.

MR. EARNEST:  Well, Jordan, we’ll take a look at the legislation and we’ll get you a firm answer on that once we’ve had a chance to review it.  I’ll just say, in general, that as President Obama was preparing to take office in late 2008 and then in early 2009, we worked quite effectively with the Bush White House that had made a smooth transition a priority.  The American people were quite well served by the Bush White House’s commitment to that principle, and I can tell you that that is a principle that this administration expects to continue, if not even further enhance.

There are significant consequences for our national security.  It certainly positions the next President to hit the ground running, and that’s important when doing the people’s business.  

So we recognize that the previous administration made that a priority.  And I’ll point out, particularly when we’re talking about bipartisan cooperation in the context of the Supreme Court, the Bush White House did that even though they were coordinating with an incoming Democratic President.  They recognized that the responsibility that they had to ensure a smooth transition superseded any narrow political consideration that they had to make, and they understood that that’s because that’s a constitutional duty of the President that after serving two terms, they hand the reins on to somebody else, and ensuring that smooth transition was in the best interest of the country.  We certainly intend to fulfill that precedent, that commitment, and there’s probably a lesson in there somewhere for Senate Republicans.


Q    Hi, Josh.  The People’s Daily, I don’t know if you read it --

MR. EARNEST:  I don’t.

Q    Okay.  

MR. EARNEST:  I’ve heard of it, though.

Q    Their lead story today says that the President will meet shortly with the President of China.  I’m wondering, is that true?  When will the meeting take place if it is true?

MR. EARNEST:  I don’t have any updates for the President’s schedule at this point.  Obviously President Obama had an opportunity to talk to President Xi at least a couple of times just in the first couple of months of this year, usually in response to provocations from the North Koreans.  And that consultation has been fruitful, as we see with the package of sanctions that will be voted on hopefully by the U.N. Security Council tomorrow.

But I don’t have any additional meetings to tell you about at this point, but we’ll certainly keep you -- I believe the last time that President Obama had an opportunity to meet with President Xi was in Paris during the U.N. climate talks there back in December, so it’s been a few months since they’ve had an opportunity to get together.  And we’ll let you know when another meeting is on the books.

Q    The same newspaper has an accompanying article which says that if the U.S. deploys the B-21 stealth bomber to Okinawa, it intimates the Chinese would attack that plane on the ground.  And I’m wondering, in light of that kind of saber-rattling, how would you describe the relationship between China and the U.S. today?  I mean, is it that tense?  

MR. EARNEST:  Well, I didn’t see that specific report, so it’s hard to respond with a lot of specificity about that.  I’ll just say in general that we’ve been pretty clear that there have been some important areas where the United States and China have been able to effectively coordinate our efforts -- certainly compiling a package of sanctions to respond to North Korean provocations is one good example of that.  The United States and China, by working together, did serve as a catalyst for the process that eventually resulted in the historic climate agreement in Paris.  That would not have been possible without the world’s two largest economies coming together and demonstrating a clear commitment to the success of that process. 

But at the same time, we’ve not attempted to paper over our differences in other areas -- most notably, I guess I would cite the current situation in the South China Sea that China has a pretty clear difference of opinion with a number of other countries in the South China Sea who have competing claims on certain land features in that part of the world.  And while the United States is not a claimant to any of those features, we have encouraged all sides and all parties to try to come together and resolve their differences diplomatically without escalating the potential for a military confrontation.  That doesn’t serve anybody’s interests.  There’s important commerce that flows through the South China Sea, and it would have a bad impact on the U.S. economy and on the global economy if that flow of commerce were somehow interrupted by a military conflict.

So we’re going to continue to work with the Chinese, and hopefully we’ll try to bridge our differences there.  But I think that’s a decent summation of where things stand with the Chinese right now.


Q    Thanks, Josh.  Would it be accurate to say you believe that the Attorney General is highly qualified?

MR. EARNEST:  Again, I think the fact that she was confirmed less than a year ago by a bipartisan majority in the United States Senate would be an indication that it’s not just the President who believes that she’s highly qualified, it’s that Democrats and Republicans in the United States Senate believe that she’s highly qualified.

Q    Then you’re also aware it’s accurate that that count was 56-43 -- a pretty big swing for it not to be a follow-up confirmation based on, if nothing else, the math.  Is that accurate, that number, 56-43, based on your memory?

MR. EARNEST:  I haven’t looked at the vote totals but it sounds about right to me.

Q    So you see where I’m going with this.  In other words, if you’re talking about someone who is highly qualified, has already been confirmed by the Senate 56-43, would it be fair to say that you believe she would make an outstanding nominee for the high court?  Wouldn’t the President believe that to be so?

MR. EARNEST:  I wouldn’t speculate at this point about who the President is considering, but I think there’s no denying that she is somebody who brought to her confirmation process last year a set of impressive legal credentials that earned bipartisan support in the Senate.  She also is somebody who, over the course of about a year on the job, has served the American people quite well as the top law enforcement official in the country. 

So the President is certainly proud of the important work that she has done.  But whether that has any impact on his thinking about the Supreme Court, we’ll just have to wait and see.

Q    Would it surprise you if he were to nominate her?

MR. EARNEST:  Look, I think the President is going to consider -- cast a pretty wide net in his --

Q    Based on the SCOTUSblog that we read the other day, it seemed that she sort of checks every box. 

MR. EARNEST:  I wouldn’t deny that.  I think that she probably does fit a lot of the criteria that we’ve discussed.  But I think there are other people who fit that criteria, too, and the President is committed to consulting people with a wide range of experiences and credentials, and he’ll follow through on that commitment and he’ll give this all careful consideration.  I don’t know whether or not she will be part of that process or not.

Q    She was on Fox News last night and she was asked about a comment that you made about a month ago when I asked you about the Hillary Clinton Benghazi emails. 

MR. EARNEST:  I saw that.

Q    Yes.  And in particular, you remarked in your answer to me, “Is it with confidence that you felt like she would not be indicted?” and you said at the time, based on what some people at DOJ are saying, it’s not likely to happen.  She refuted that last night.  And I just want to kind of figure out or square what she said, based on --

MR. EARNEST:  She didn’t refute it.  It’s a good thing I read the transcript.  She didn’t refute it.  She said that --

Q    I can tell you what she said.

MR. EARNEST:  Okay.  Let’s pull it out.

Q    All right.  (Laughter.)  So here’s what was --

MR. EARNEST:  Because I think this is worth a discussion --

Q    Yes, absolutely.  Yes.

MR. EARNEST:  Because here’s the thing -- we should also give some scrutiny to what Mr. Baier said, too.

Q    Okay, absolutely.  This is what Bret said -- he said, “Okay, how about this, Press Secretary Josh Earnest said this about Hillary Clinton’s investigation from the White House briefing room.  He said ‘Some DOJ officials have said Hillary Clinton is not the target of the investigation.’”

MR. EARNEST:  They said that publicly, as reported by news organizations in this room, including Fox News.

Q    “So are officials briefing Josh Earnest?”  And she said, “I can tell you unequivocally that no one outside DOJ has been briefed on this in any case.  It’s not our policy and it’s not happened in this matter.”

MR. EARNEST:  That’s right.

Q    So you said some DOJ officials had made that comment.

MR. EARNEST:  They have.  They’ve said it -- 

Q    So were they making this comment to you specifically?  Did you talk to someone?  Did someone brief you in particular?  Tell me where you got it.

MR. EARNEST:  No one has briefed me.  I have not talked to anybody at the Department of Justice with knowledge about this situation.

Q    So you took -- 

MR. EARNEST:  My comments from that briefing were rooted specifically and entirely on public comments as reported by all of you, including by Fox News.  

Q    Was it a particular person that you’re quoting from -- that you saw on Fox News from DOJ?

MR. EARNEST:  We’ll send you the reports.  We can send you the reports.

Q    Because I don’t -- I didn’t recall, and I looked.  I didn’t see any particular DOJ official tell Fox News that they told you or that they have said --

MR. EARNEST:  No, no, no, I’m not -- no one has told me anything.  I’m talking about what Department of Justice officials have told media outlets.  All of you have reported this.  It was on the front page of many leading newspapers across the country, and it was included in discussions on Fox News.  So there’s no secret here.  It’s quite clear exactly what has happened.  

And as the Attorney General said and as I said at the time, and as I’ll say again right now, this is an independent investigation And this is something that is being led by independent investigators at the Department of Justice, and they are making decisions based on the facts, and they’re making decisions based on where the facts tell them to go.  They’re not doing that based on any consultation with me or anybody else at the White House.  They’re doing this based on an ongoing independent investigation that will be guided by the facts.  That’s what they should do.

Q    Okay, so just so I’m clear, you have no independent knowledge of anything that has to do with this investigation, and you were only making a broad statement based on what you’d read in media accounts?

MR. EARNEST:  I think I was making a very specific statement based on what I had read in a wide variety of media accounts.  And that is in no way predicated on any secret conversations that I’ve had with the Department of Justice, because I haven’t had any secret conversations with the Department of Justice.

Q    Okay.  One more.  I want to ask you about Ash Carter.  He said that the White House does not -- or would not move with executive action to transfer detainees.  Has the President made specific comments that he will not use executive action to close the prison at Guantanamo Bay and therefore try to move detainees to the U.S.?

MR. EARNEST:  I haven’t heard the President say that publicly, either.  The President has been asked on a number of occasions whether or not he would consider using executive action, and what he has said when asked that question is that right now we are focused on trying to work with Congress to get them to remove the obstacles that they have erected to prevent the closing of the prison at Guantanamo Bay.  

The reason that this is important is the President and his national security team, including leadership at the Pentagon, have concluded that our national security interests would be advanced, that our country would be safer if we took away the symbol of the prison at Guantanamo Bay that terrorist organizations are using to recruit terrorists.

We also know, based on the plan that was put forward by the Department of Defense, that we could actually save some money.  We could actually better use taxpayer dollars by closing the prison at Guantanamo Bay, which is prohibitively expensive, and actually detaining suspected terrorists in the same way that we’re detaining convicted terrorists in the United States right now.  

There are dozens of individuals who have been convicted of terrorism inside the United States who are currently being held on American soil in American prisons.  That doesn’t actually pose a threat to our national security.  That doesn’t make us more vulnerable.  If anything, it actually makes us safer because those individuals are not out walking around and planning terrorist attacks.  And we’ve demonstrated to the world that we can live up to our values and that we can prosecute our values, bring people to justice, keep the American people safe, in a way that is consistent with the kinds of principles that we hold dear.

Q    And a couple nuggets on that.  You did say that 20 years out we could save up to a billion dollars if we close it, comparatively speaking.  And we’ve talked about Supermax in Colorado, for example, where there are a number of terrorists -- shoe bomber, underwear bomber, 9/11 conspirator -- so that is true. But my question was, would the President rule out using executive action to close it?  And I guess the second part of that would be, would it be possible then, if that facility were closed, that they could be transferred to another U.S. military facility in another location if Gitmo itself were closed?

MR. EARNEST:  Well, I think for the potential of using a military facility, I’d refer you to the Department of Defense.  They obviously are in charge of administering those facilities.  What the plan contemplated was they took a look at the kind of criteria that they would use for any facility to serve this purpose -- and there are a variety of considerations.  Obviously we’re dealing with people who do pose a threat to the public, so we need to make sure that the facility is secure.  We also need to make sure that we’re holding a very high standard when it comes to protecting their basic human rights.

In some cases, those individuals who are being detained would be going through a military commissions process, and so it would be more efficient if there is a place on site or relatively nearby, a place that’s secure where those proceedings could take place.  We didn’t want to be in a position where every time that an individual has a court appearance that we have to fly them to another location.  But if we can just move them to a different part of the building, or drive them down the street, we can ensure that those processes, those legal proceedings are carried out more efficiently.

And so those are the kinds of considerations that they consider.  I don't know whether or not they have ruled in or ruled out potential military facilities.  I think what they’ll probably tell you is that we need to see Congress remove some more restrictions so that we can spend more money and devote more time to considering potential facilities and actually implementing this plan.

Q    I just want to be fair.  So you're not -- the President hasn’t ruled out executive action.  He just hasn’t said yea or nay.  

MR. EARNEST:  That's correct. 

Q    And is it lawful to go from military facility to another one if that facility is on U.S. soil?  That's the only thing I’m not sure about.  Because going from facility to facility would seem to be under the DOD auspices, but I’m not sure if that's lawful if that particular facility say, Leavenworth, for example, is on U.S. soil.  Are you aware -- is that lawful?  Or have they determined that?

MR. EARNEST:  Why don't we check on your line of questioning -- we’ll see if we can get you a better answer.

Q    Thanks.

MR. EARNEST:  Toluse. 

Q    If I can just follow up on Gitmo before asking about Apple.


Q    Ash Carter said yesterday that it’s not possible to close Gitmo without Congress acting.  Loretta Lynch has said something similar.  The Joint Chiefs have also come out in pretty clear language to that.  But when you’ve been asked about it, you’ve said you're not going to take anything off the President’s -- basically not going to take it out of the President’s hands.  You're going to leave the President the option of potentially using executive action in the future.  So are all of these other administration officials off message when they're basically doing what you said you're not going to do, taking it basically off the President’s table in terms of executive actions?

MR. EARNEST:  Well, look, when it comes to the President wielding his executive action, the person that has the final word on it is the President of the United States.  And he certainly will do that in consultation with his attorneys because he’s committed to following the law and that's exactly what he will do.

What that means for the way that he could use executive action with regard to this specific matter, I’m not going to speculate on that.  The President will ultimately make that decision.  But that's not a decision that he’s focused on right now.  Right now the decision that he’s focused on is a decision that Congress needs to make to remove obstacles that prevent us from doing the right thing. 

And by doing the right thing, I mean closing the prison in Guantanamo Bay, following the advice of the Pentagon leadership, following through on the steps that even Republican national security officials acknowledge would make us safer, and also taking steps that would save taxpayer dollars.  

So I’ve compared this before to the kind of decision tree that Republican presidential candidates have set up for themselves, that when they're laying out their criteria and they're laying out their leadership principles, they're suggesting that they would protect the country, that they would follow the advice of our military leadership, and they would cut wasteful government spending.  Well, by implementing this policy, we can certainly pursue and make progress against all three of those objectives.  And that's the case that we're making to Republicans in the United States.  After all, I think that's why a number of Republican national security experts have come out in favor of this approach.

Q    And I wanted to ask you about Apple, the case in New York that basically blocked the government from doing what you want to do in San Bernardino.  I know there are differences between the two cases.  But one of the things that the judge said -- and I want to quote from his ruling -- he said, “It’s okay the government has made the considered decision that it’s better off securing such crypto-legislative authority from the courts rather than taking the chance on open legislative debate that might produce a result less to its liking.”  And that was specifically about using this archaic All Writs Act to try to get into these phones.  It’s a law from like the 1700s.  So I’m wondering, should you all be more involved in the legislative debate to come up with something that's modern, to focus on encryption and come up with a law that sort of threads the needle on this that protects both security and privacy?

MR. EARNEST:  Well, with all due respect to the judge in New York, a judge considering a similar but different set of facts in California came to a different conclusion and concluded that the government was -- that it was entirely appropriate for the government to pursue the action that we have laid out.  But ultimately this is something that will go through the courts.  And these are probably not the only two judges that will have the opportunity to weigh in on this particular set of policy questions.

But look -- we talked a little last week. Too -- when it comes to Congress, asking them to do even easy things doesn't often result in a prompt progress.  And I think all of us would agree that dealing with issues related to encryption are rather complicated, and I think the likelihood that Congress would be able to successfully and efficiently handle this matter is rather unlikely.  But, look, we’ll have to see how this plays out in the courts and we’ll have to see if legislation is eventually required.  But, again, if it is, I don’t think that there would be a lot of optimism that this is something that Congress would be able to do quickly or successfully.

Q    One more on this.  The SCOTUS meeting today -- the Republican leaders last week said that they would also use the opportunity of the meeting to bring up other issues like opioid legislation.  I’m wondering, did any other legislation come up besides the Supreme Court nominee?

MR. EARNEST:  Yes, I understand that there was a brief discussion both of opioid legislation and of criminal justice reform legislation.  That’s relevant because the Senate Judiciary Committee is the jurisdiction for those two bills.  So there was a brief discussion of those issues.  But the President’s focus in the meeting and at the top of the President’s agenda was a discussion about his constitutional duty to fill a vacancy on the Supreme Court.


Q    On the meeting, I’m curious why President Obama didn’t use the photo-op at the start to make a statement, as he so often does.  And certainly there were questions asked that could have let him make the case, about which he feels so strongly.

MR. EARNEST:  Well, Mark, to be blunt about this one, in previous pool sprays in these settings when the President has invited the leaders down after Supreme Court vacancies, on one occasion, the President did speak to the pool and another one he didn’t.  I think in this instance, given the pretty stark difference of opinion about how to proceed, the President felt like it would be more courteous to withhold his comments and allow the discussion to take place in private.  But we had made a commitment to all of you that we’d give you an opportunity to enter the room, at least briefly, at the top of the meeting, and get photographs and get a chance to evaluate the body language and all the other things.  So that’s why we followed through in having a pool spray, even though the President decided to reserve his comments.

Q    Was there an agreement with the Republican leaders about no statement?

MR. EARNEST:  No, I think this was a decision that the President made on his own.  Obviously, it’s his building, it’s his office, and he called the meeting, so he certainly had the right to make a statement.  But out of deference to the Republican senators that obviously vigorously disagree with his point of view, he decided to reserve his comments.

Q    And although no minds were changed, he still feels the meeting was worthwhile?

MR. EARNEST:  Absolutely.  Again, because of the importance of any President consulting with the United States Senate in advance of putting forward a Supreme Court nomination, and that consultation should occur not along party lines but actually across party lines.  That’s why Democrats and Republicans attended the meeting.  And the President takes that responsibility quite seriously.  And it certainly is not the last conversation that the President will have with anybody in the Senate as he continues to contemplate who would be the best person to fill the vacancy on the Supreme Court.

Q    Is his binder getting thicker?  (Laughter.)

MR. EARNEST:  Well, presumably, some of the materials that he has reviewed can be removed from the binder.  But it is true that there is information that is regularly being forwarded to him for his review.


Q    Thanks, Josh.  Chairman Grassley, in explaining why he won’t even allow a hearing on a Supreme Court nominee, has said that the fact that this is taking place in a presidential election year gives us a unique opportunity to have a debate not only about who the President should be in picking a nominee, but the role of the Court itself.  Why is that not a valid point of view?  And wouldn’t the President like to have a part in that debate?

MR. EARNEST:  Well, I would say, Mike, that we had that debate in 2012 and that was a debate that the President won -- he was reelected by a majority of the American people.  And when he took office for a second term, he was given all of the rights and responsibilities that are vested with any President for four years.  He was not elected to a term of three years and one month; he was elected to a four-year term.  

And the President -- we’ve talked at some length, even prior to Justice Scalia’s tragic and untimely death, about the President’s intent to squeeze every bit of opportunity out of the time that he has remaining.  And that means doing everything that he can to fulfill his constitutional duty to serve the American people.  And that includes being vested with the responsibility to nominate candidates to fill a vacancy on the Supreme Court. 

Because after all, it would be unprecedented in the modern Court for a vacancy to last for more than a year.  Given the significant stakes surrounding the cases that will be evaluated by the Supreme Court, we should make sure that they aren’t considering those cases shorthanded and that they have the full complement of justices, that the Supreme Court can function the way that the founders of the Court intended.  

And that's what the President feels a responsibility to do. It’s laid out in the Constitution.  And there’s a clear precedent dating back to President Reagan’s final year in office when he was in a position to ask the United States Senate to confirm his nominee to the Supreme Court.  He did that in a presidential election year.  He did that in his last year in office.  He did that even though the other party was in charge of the Senate.  But yet that other party -- understanding the duty that they have under the Constitution -- worked effectively with Republicans and with the Republican President to confirm Justice Kennedy to the Supreme Court.

Q    And then, on Super Tuesday and the presidential campaign, does the possibility or even the probability now that Donald Trump is going to be the Republican nominee affect the way that the White House is planning for the President’s involvement in the fall campaign?  In other words, would he be more active, do more events in the campaign if it’s Donald Trump as the nominee versus what they would have done for Marco Rubio or Ted Cruz?

MR. EARNEST:  No.  I would anticipate that the President will be active on the campaign trail over the course of the summer and the fall.  He’ll have a case that he is eager to make about how important it is for the next President of the United States to build on the progress that we’ve made thus far.  And considering that all of the Republican candidates have run campaigns that I think can adequately be described as divisive and vowing to roll back so much of the progress that we’ve made over the last seven years, I think that's a reason for the President to be involved.

And obviously you’ll hear from the President himself on this once we get to the general election.  But that's the essence of the case that the President looks forward to making on the campaign trail later this year.

Q    And then lastly, has there been any calls that the President makes on these primary nights to the Democratic candidates to congratulate them, to talk to them about how the campaign is going?  Or is there a point at which you expect that he’ll make the call to congratulate the presumptive nominee before any delegate threshold might have been --

MR. EARNEST:  The President has not been making calls over the course of these election nights.  But I would anticipate that once a presumptive nominee has been chosen by Democratic voters across the country, that the President will make a congratulatory call, but also probably wish well the candidate who didn't win. 

After all, we’ve seen that both Secretary Clinton and Senator Sanders -- regardless of the final outcome here -- have succeeded in motivating a significant portion of the Democratic Party to support their campaign, and the unity of the Democratic Party will be critical to our success in the general election. And while there are differences between the two Democratic candidates, those differences pale in comparison to the differences between the values put forward by the Democratic candidates and the values put forward by the Republicans candidates.

Q    Thanks, Josh.

MR. EARNEST:  Fred, I’ll give you the last one.

Q    Thank you, Josh.  As far as the nomination goes, the Supreme Court confirmation process has been extremely brutal going back at least to 1987.  But the hope for the nominee that has to go through that has always been that there’s light at the end of the tunnel.  Based on what’s happening now, it just seems like there’s a less than 50 percent chance of an actual confirmation.  Do you think it is going to be hard to -- we’ve already seen even some Democratic lawmakers -- attorney general in California, Senator Booker -- even sort of waved off being considered for this.  Do you think it’s going to be hard to get someone to step up to want this nomination?  Is the nomination worth having?  

MR. EARNEST:  It absolutely is.  And I do not anticipate having any trouble choosing the right person for the job and having that person accept the opportunity to go through the nomination process.

Look, the nomination process, as you point out, is rigorous -- and it should be.  We’re talking about a lifetime appointment to the highest court in America.  It should be a rigorous process.  There should be lots of meetings, private and public.  There should be days of hearings, under oath, where Democrats and Republicans ask tough questions, and the nominee in front of the American people on television, under oath, should answer those questions.  That should be part of the process.

What’s also true, though, is that the process shouldn’t unnecessarily be drawn out.  You can have a rigorous, intensive process that isn’t plagued by unnecessary delays.  And since, I believe, the mid-‘70s, about the average amount of time it has taken for a Supreme Court Justice once nominated to be confirmed is 67 days.  So we can spend about two months questioning and probing and evaluating the candidacy of whoever is put forward.

But at that point, that person should get a vote, a yes or no vote about whether or not they deserve to serve on the Supreme Court because they can serve the American people on the Supreme Court with honor and distinction.  And that certainly is the case we’ll be making.

Q    And given the -- as you said it should be -- very rigorous confirmation process, given it’s a lifetime appointment, do you think it should be more rigorous than a confirmation process for a Cabinet position or a lower court position?

MR. EARNEST:  Well, I think that process for a Cabinet nomination or anybody who gets a lifetime appointment to the federal judiciary, that should be a rigorous process, too.  And I think we’ve seen that process function in a way that, frankly, over the last year or so has also been bogged down by Republicans.  And that’s been a source of quite a bit of disappointment -- that the kind of obstruction that we’re seeing around the Supreme Court gets a whole lot more attention -- and it should -- but the fact is, we’ve seen this obstruction from Republicans since they took the majority in January of 2015 block any number of very qualified nominees to district and appellate court positions, and that’s been a source of some disappointment, too.

So this obstruction that we see from Republicans is not unique, and is also -- that obstruction is also inconsistent with their constitutional duties.  But, look, I understand that everybody treats the Supreme Court nomination with special attention and special care -- all the more reason that Republicans should pay special attention to the need to fulfill their constitutional duties.

Thanks, everybody.  We’ll see you tomorrow.

2:23 P.M. EST