A federal judge said that he will rule “as soon as I can” on whether access should be restored to CNN, Politico and MS NOW after Donald Trump‘s banned them from the White House because of their coverage of him.
The three outlets are seeking a temporary restraining order to immediately lift the ban and return their credentials.
In a 45-minute hearing on Wednesday, U.S. District Judge Timothy Kelly noted at the outset that he is bound by D.C. circuit precedent that sided with journalists when it comes to White House access, including a 1977 decision in Sherrill vs. Knight and a 2020 decision in Karem vs. Trump, the latter having to do with the revocation of report Brian Karem’s credentials.
Kelly told the attorneys that, based on his reading of documents in the case, the court precedent “wasn’t followed here.”
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The judge also noted that he previously presided over a CNN lawsuit against the administration after they revoked the hard pass of its then-chief White House correspondent, Jim Acosta. Kelly ruled that his pass had to be restored because he was not given notice.
The networks sued Trump on Monday, three days after he announced a ban on the outlets access to the White House grounds. The lawsuit claimed violation of the First Amendment and the Fifth Amendment right to due process. The latter issue — that networks were not given an opportunity to challenge the ban before it was implemented or even the reasons for it — dominated much of Kelly’s hearing.
Theodore Boutrous Jr., representing the networks, urged the judge to act quickly on their motion for a TRO or a preliminary injunction.
“These are urgent matters. We’re at war. We have world leaders coming to Washington,” he said, adding that “harm is irreparable. The public interest favors striking down unconstitutional acts like that.”
Michael Velchik, senior counsel at the DOJ’s civil division, representing Trump, argued that notice was given to the networks on Tuesday, citing reporting on national security that they claimed was “publishing sensitive or classified information.” Velchik urged the judge to delay a ruling until Friday, the deadline for the networks to challenge the ban.
But Boutrous dismissed the argument, telling the judge that “all of the sudden it is national security case,” noting that Trump initially cited negative coverage of him. He suggested that the DOJ was making a rationalization after the fact, noting that Trump didn’t even raise the issue of national security until after the networks filed their lawsuit.
Yet even taking the DOJ’s justification into account, Boutrous said, “They are literally arguing reporters shouldn’t scrutinize national security decisions by the government.” He also noted that the Sherrill decision prohibited content-based criteria for issuing press passes.
What’s more, the Tuesday notices to the networks didn’t just argue that the ban was due to national security. The letters to the outlets claimed “behavior in violation of the standards of professionalism and decorum,” while the letter to Politico cited as objectionable a story about Trump’s midterm convention.
Boutrous said that what Trump was objecting to was “very essence of the First Amendment. … the president said, ‘I don’t like what you’re publishing. I’m taking away your press pass based on that.’”
Earlier on Wednesday, the Reporters Committee for Freedom of the Press, the White House Correspondents’ Association and dozens of news outlets, ranging from the Associated Press to Fox News, urged the judge to issue the temporary restraining order.
