Judge Orders Trump to Restore White House Access for CNN, MS NOW and Politico

A federal judge has ordered the Trump administration to temporarily restore White House access for journalists from CNN, MS NOW and Politico, finding that their press credentials were revoked without constitutionally adequate due process.

District Judge Timothy Kelly issued the ruling Thursday in response to a lawsuit brought by the three news organizations after President Donald Trump barred them from the White House on September 18.

Kelly said the ban was likely unconstitutional and ordered his temporary restraining order to remain in effect for 14 days. He also said the government’s arguments provided little support for its claim that the restrictions were necessary for national security.

The judge rejected the administration’s argument that national security justified removing the journalists’ hard passes. “The record lacks factual support for defendants’ contention that the revocation of plaintiffs’ hard passes will ​in fact protect national security or that national security will be endangered if the court orders their passes reinstated while this litigation ​proceeds,” Kelly wrote.

Kelly noted that Trump had initially given a different reason for the ban, pointing to what he described as an "alleged lack of truthfulness and negativity" in the outlets’ reporting.

The judge said two earlier decisions by the US Court of Appeals for the District of Columbia Circuit established that White House press credentials may be revoked only after due process. He found that the three organizations did not appear to have been given a proper opportunity to challenge the decision.

The Trump administration did not notify the affected reporters about an opportunity to appeal until after their passes had already been confiscated, Kelly said. “The ‘general rule’ is that ‘individuals must receive notice and an opportunity to be heard before the Government deprives them’ of a constitutionally protected interest,” he wrote, citing case law.

Kelly, who was nominated by Trump in 2017, previously ordered access restored to a CNN journalist in a similar case in 2018.

The judge also said the record did not contain relevant "formally articulated standards" that had been established before the conduct cited by the administration as grounds for revoking the journalists’ credentials.

He referred to letters sent by the administration to the three outlets on September 22, which objected to their reporting and alleged that one organization had "exhibited behavior in violation of the standards of professionalism and decorum expected of those given access to the White House Complex."

Kelly said that standard was so vague that it provided little justification for the decision.

The judge also examined the administration’s use of national security as a justification. He noted that nothing in the record from before the lawsuit indicated that national security had motivated the revocation of the hard passes.

“Certainly, that is not what President Trump said when he announced that he was ‘banning’ Plaintiffs from the White House - instead, he focused on the alleged lack of truthfulness and negativity of Plaintiffs’ reporting,” Kelly wrote.

He added that the explanations given to the outlets after the lawsuit was filed remained unclear because the administration’s letters referred to reporting that had "threatened national security and/or spread falsehoods," leaving open whether the government considered the stories a national security threat or simply false.

At a Wednesday hearing, Justice Department attorney Michael Velchik argued that CNN, MS NOW and Politico had endangered national security through their reporting and that Trump had the authority to determine which news organizations could enter the White House.

The Justice Department had also argued in a Tuesday filing that access to the White House was a privilege rather than an entitlement and that the president had the authority to deny access to news organizations.

The three outlets argued that they had been singled out because of the content of their reporting and described the ban as a "blatant violation" of the First Amendment, which bars government infringement on freedom of speech and freedom of the press.

Attorney Theodore Boutrous Jr., who represents the news organizations, said the administration’s national security argument emerged only after the ban had been announced and the lawsuit filed. During Wednesday’s hearing, he said it appeared that “a light bulb went off” within the administration and that national security was adopted afterward as a justification.

Boutrous also argued that the outlets received letters explaining the reasons for their exclusion only days after the ban was announced and after they had filed their lawsuit.

The judge said the organizations had established that they were likely to suffer irreparable harm without the temporary restraining order and that reinstating the reporters’ press credentials served the public interest.

“Plaintiffs - and the public - have an abiding interest in maintaining the status quo ante given the importance of the free press, which ‘stands as one of the great interpreters between the government and the people,’” the ruling said.

Kelly’s order cannot immediately be appealed, according to the judge. He set out a process for the news organizations and the Trump administration to continue presenting arguments and evidence over the following two weeks, although he did not specify particular deadlines or additional hearings.

The process is expected to produce a more detailed ruling than the emergency decision issued Thursday morning.

Trump announced the ban on the three outlets in a social media post Friday, saying he was removing them “as a result of their constant ‘reporting’ FAKE NEWS!” and adding, “Other Fake News Media Outlets to follow.”

CNN, MS NOW and Politico subsequently sued, seeking to suspend the ban or have it blocked altogether. Their lawyers argued in court filings and at Wednesday’s hearing that the restrictions conflicted with earlier court rulings, violated due process and were imposed because of Trump’s hostility toward the journalists.

Administration lawyers responded that Trump’s decision included an appeals process and pointed to the letters sent to the outlets after the ban took effect.

Following Thursday’s ruling, Boutrous said in a statement emailed to the AP news agency that the decision upheld press freedom, due process and the rule of law. “This is a strong ruling vindicating freedom of the press, due process and the rule of law,” Boutrous said. “We greatly appreciate the court’s swift action.”

CNN sought comment from the Justice Department and the White House.

The ban also prompted other media organizations, including DW, to take action in solidarity by suspending pooled coverage of Trump events.

The television pool could now decide to resume live and recorded coverage of presidential events, although its organizers had not yet issued updated guidance. CNN is one of five members of the pool, which operates under a longstanding arrangement in which the networks rotate responsibility for filming the president and sharing live footage with one another and the wider press corps.

Local television stations, newspaper websites and media organizations around the world rely on that coverage.

The five major television networks had previously announced that they would stop covering presidential speeches and appearances after Trump prevented CNN from carrying out its assigned duties for the White House pool on Monday.

In a joint statement, ABC, CBS, CNN, Fox News and NBC said, “The public has a vital interest in receiving accurate, independent information about its government. No administration should restrict a news organization because it objects to its reporting.”

Almost 50 news organizations also signed a friend-of-the-court brief on Wednesday urging Kelly to overturn the restrictions on CNN, MS NOW and Politico.

The White House Correspondents’ Association said the brief, assembled by the Reporters Committee for Freedom of the Press, reaffirmed “what the law has long established: the government cannot remove journalists from the White House because it dislikes their reporting. That is viewpoint discrimination, and a clear violation of the First Amendment.”

Kelly also referred during Wednesday’s hearing to his handling of a similar dispute in 2018, when Trump removed then-CNN correspondent Jim Acosta following a heated exchange between Acosta and the president. The judge said he was required to follow existing court precedent.

“There is a due process claim and a due process issue that seems to me the first stop in figuring out how to resolve the motion,” Kelly said at the hearing.

In Thursday’s ruling, Kelly said the circumstances did not qualify as sufficiently “extraordinary” to justify departing from due process principles requiring that a deprivation of liberty “be preceded by notice and opportunity for hearing.”

The ruling came only hours before Trump was scheduled to welcome Chinese leader Xi Jinping.

The case also involved reporting cited by the administration as a national security concern. During Wednesday’s hearing, Boutrous said only one CNN story cited by the government had been written by a reporter with White House access and argued that the stories referenced by the administration amounted to “just garden variety reporting.”

Kelly noted that the CNN report cited as a national security concern concerned the planned rebuilding of a bunker beneath the East Wing. He also pointed out that the report had been published months before CNN reporter Betsy Klein’s White House press pass was renewed this summer.

“None of Defendants’ arguments convince the Court that Plaintiffs are not likely to succeed on their due process claim,” Kelly wrote.