US judge questions Trump’s decision to ban CNN, MS NOW and Politico from White House

A US federal judge on Wednesday questioned whether President Donald Trump's decision to ban CNN, MS NOW and Politico from the White House complied with existing court rulings, but he did not immediately decide whether the news organizations should regain access. US District Judge Timothy Kelly held a hearing in Washington to consider a request from the three outlets for a temporary restraining order that would restore their White House access while their legal challenge proceeds. The outlets filed the lawsuit on Monday, arguing that the ban violates First Amendment protections for freedom of speech and a free press, as well as due process rights.

Kelly pointed to two previous rulings by the US Court of Appeals for the District of Columbia Circuit concerning journalists' access to the White House. He said those precedents establish that journalists are entitled to due process before their press credentials can be revoked. The judge also questioned whether the White House had provided CNN, MS NOW and Politico with a meaningful opportunity to challenge the decision before their access was withdrawn.

"The government said those cases ... were wrongly decided," Kelly said. “Maybe they were wrongly decided, maybe they weren't. But as a ⁠district court judge I have to apply them. I think it is fair to say the process the circuit laid out in those two cases wasn't followed here.” Kelly said he would issue a ruling later on the request for a temporary restraining order rather than making an immediate decision at the hearing. An attorney representing the news organizations argued that the outlets were denied advance notice and an opportunity to contest the decision before their access was revoked.

"By ejecting and banning the plaintiffs from ​the White House without a semblance of due process here, defendants have imposed what really amounts to an unprecedented, unreasonable and severe punishment," attorney Theodore Boutrous said. Michael Velchik, a Justice Department lawyer, defended the administration's position, saying letters sent to the news organizations on Tuesday provided sufficient explanation for the revocation of their press credentials.

Kelly, however, questioned that argument because the letters were delivered after the access had already been revoked and after the lawsuit had been filed. "I don't know how a letter ​that they got after the pass was revoked could provide them with the notice of the kind of standards that they would have to conform their conduct to, since it's a piece of paper they got ​saying, 'You've already violated this.'"

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National security argument

In a filing before the hearing, the Justice Department argued that access to the White House is a privilege rather than an entitlement and maintained that the president has authority to suspend access for news organizations. The department also supported Trump's contention that national security concerns justified the restrictions. The three outlets have accused the administration of unlawfully discriminating against them because of their editorial viewpoints.

"The viewpoint discrimination is probably the clearest case in history. I mean, the president said, 'I don't like what you're publishing. I'm taking away your press pass based on that,'" Boutrous told the hearing. "They are using national security as this talisman, these magic words," Boutrous said. “It is just a pretextual, post hoc effort to justify just a blatant violation of due process.” Trump announced the ban on Friday through his social media platform, arguing that the news organizations "shouldn't be able to constantly write ​or report FICTION and LIES when they're covering the ​President of the United States."

The administration subsequently sent letters to the outlets accusing them of creating national security risks through their reporting. The letters cited coverage involving US missile stockpiles, construction of Trump's White House ballroom and attendance at the Republican Party's recent midterm convention. "The president has set out notice of his determination that he personally made to identify this ​particularity and not exhaustive list of reporting incidents. He has provided a process for plaintiffs to contest these particular incidents,” Velchik told the judge. But Boutrous said, "It's not ​due process when there is ⁠a prejudgment of the issues."

Earlier CNN press-pass case

The dispute also echoes a 2018 case involving CNN correspondent Jim Acosta. Kelly ordered the White House to restore Acosta's press pass after it had been revoked following a contentious news conference with Trump. At the time, Kelly ruled that the White House had failed to use fair and clear procedures in revoking Acosta's credential, describing the process as “shrouded in mystery.” Trump later criticized Kelly on social media and expressed regret over appointing him to the federal bench in 2017 during Trump's first presidential term.

The latest case has also drawn support from press freedom organizations and other news outlets. A coalition filed a legal brief on Wednesday supporting CNN, MS NOW and Politico, arguing that journalists should not lose access because of perceived editorial viewpoints. The brief was signed by the Reporters Committee for Freedom of the Press, Reuters, the Washington Post and Fox News, among others. The judge's eventual ruling on the temporary restraining order will determine whether the three organizations regain White House access while their broader legal challenge continues.