A US district judge on Wednesday heard arguments in the extraordinary showdown between Donald Trump and CNN, MS Now and Politico, suggesting in comments that he was more inclined to side with the media plaintiffs who sued the president on Monday.
Lawyers representing the media organizations have asked Timothy J Kelly, a district judge, to force the White House to return the press badges that were taken over the weekend after Trump banned their journalists from the building. While the judge declined to rule on Wednesday, he acknowledged that due process had not been followed in revoking access.
The three news organizations were not given advance notice that they were in violation of any set of standards and only received formal notice – in letters sent to each news organization on Tuesday – that they “exhibited behavior in violation of the standards of professionalism and decorum expected of those given access to the White House Complex, including by trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information”.
When he originally announced the ban in a Friday post on Truth Social, Trump cited “their constant ‘reporting’ FAKE NEWS”, rather than any violation of national security protocols.
During a tele-hearing on Wednesday afternoon, Kelly cited past case law that clearly laid out the need for a distinct process that involved advance notice of an infraction and the opportunity to plead one’s case.
“I think it is fair to say that the processes that the circuit laid out in those two cases wasn’t followed here,” the judge said, referring to two similar cases involving journalists who had either lost access or were denied access to the White House. The judge said that the cases made clear that “before a journalist’s White House hard pass was suspended or revoked, that the journalist was entitled to pre-deprivation notice and an opportunity to be heard”.
Michael Kenneth Velchik, a justice department attorney representing the Trump White House, argued that such a process had been laid out in the letters, which informed each news organization that they had until 5pm on Friday to contest the ban. (The letters said that if the organizations did not submit such a challenge, it would become final.)
Theodore Boutrous, a prominent first amendment attorney who has represented many media plaintiffs in press access lawsuits against the Trump administration, said the letters were post-hoc and woefully insufficient to serve as notice.
He said the White House’s actions and process was “not even close to conforming to due process and the first amendment”.
Judge Kelly also seemed to agree that the letters were insufficient. “I don’t know how a letter they got after the pass was revoked could provide them with the standards that they’d have to conform their conduct to,” he said. “It’s a piece of paper they got saying, ‘You’ve already violated that.’”
As he laid out in a blockbuster lawsuit filed on Monday, Boutrous argued that, once the White House has been opened up to reporters, access cannot be denied for viewpoint-based reasons. He called the press ban “an unprecedented and unreasonable and severe punishment on the plaintiffs because of their content and their viewpoint”.
Because Trump explicitly tied the ban to the news outlets’ coverage, Boutrous called him the “lead witness” for the plaintiffs in arguing that the decision was content-based.
Boutrous argued that the journalists at issue – dozens of hard-pass holders at the three news organizations – are suffering “irreparable harm” by losing access to the building.
“These are urgent matters,” he said. “We’re at war. We have world leaders coming to Washington. We have [Artificial Intelligence] discussions … It’s urgent that we get a [temporary restraining order]. The harm is irreparable. The public interest favors striking down unconstitutional acts like that.”
While Kelly did not rule from the bench, he said he would issue a determination expeditiously.
Kelly ruled affirmatively for CNN in a similar press access case in November 2018, forcing the White House to return the hard pass of then-correspondent Jim Acosta after the Trump administration seized it.
At the time, Kelly said the White House had not afforded Acosta due process and agreed that the journalist had suffered “irreparable harm” by being deprived of access to the building.
Trump recently took aim at Kelly in a post on Truth Social, saying that CNN had drawn a “great judge” for them, someone he had “sadly” appointed in 2017.
Seemingly predicting a loss in court, he wrote: “In other words, almost without question and, as usual, we’ll go for appeal because Fake News people and publications that only write negatively, and who violate our National Security by writing false and defamatory stories with unknown ‘sources,’ shouldn’t be allowed access to the most important Office anywhere in the World.”
The plaintiffs in the case have received overwhelming support from fellow news organizations and groups that advocate for press freedoms, and were backed by a friend-of-the-court brief filed this week by the Reporters Committee for Freedom of the Press, the White House Correspondents’ Association and a coalition of 49 media organizations.
In solidarity with CNN, a member of the primary television pool, the other four networks – NBC, ABC, CBS and Fox News – have refused to provide video footage of the president for the time being. Some news organizations have also opted to not publish pool photos taken of the president, or to use audio from White House events, in the case of National Public Radio.
