A federal judge appeared inclined to extend his block on President Donald Trump’s ban on three media outlets from the White House.
The administration’s argument that the ban was based on national security concerns is contradicted by the president’s own words, US District Judge Timothy Kelly said during a hearing Thursday.
“That’s an uphill climb,” Kelly said of the Justice Department’s effort to defend the ban on national security grounds, noting Trump’s claim that his ban was based on his disapproval of the outlets’ coverage.
Kelly is weighing whether to grant a lengthier block of Trump’s move to ban POLITICO, CNN, and MS NOW from the White House. The Trump-appointed judge already lifted the ban last month, issuing a two-week restraining order, which he extended through Tuesday, that enabled the three organizations to regain access to the West Wing. But he now appears to be leaning toward a more durable injunction that would maintain the outlets’ access during what could be months of litigation.
Kelly’s original ruling found that the ban likely violated the news outlets’ due process rights, since the White House restricted access without any notice and without setting out any identifiable standards for news organizations to follow to maintain their credentials.
“That’s probably the biggest hurdle you all have,” Kelly told the government during a hearing that drew a swath of media executives, reporters and First Amendment attorneys to the federal courthouse in Washington, D.C., leading Kelly to remark on the vastly outnumbered Justice Department attorney assigned to the case.
In what has been a recurring theme in court battles across the country, Kelly pointed out that Trump’s own comments — declaring repeatedly in interviews and on social media that he banned the outlets for writing “negative” stories about him — conflicted with the Justice Department’s later efforts to claim the ban was a response to the outlets’ publication of sensitive national security information.
A lawyer for the news organizations, Theodore Boutrous Jr., urged Kelly to reject Trump’s ban for a second reason: a violation of news organizations’ First Amendment rights and an effort to chill the free press. Boutrous argued that a recent interview Trump gave to Time magazine “amounts to a confession” from the president that he revoked the journalists’ press passes because he considered their stories to be too negative.
“That interview really is the coup de grace,” Boutrous said. He also pointed to a recent comment from Attorney General Todd Blanche that Trump banned the outlets from the White House due to their “one-sided reporting.”
Justice Department lawyer Michael Velchik argued that the Trump administration had, in fact, provided due process to the news outlets — after Trump’s ban went into effect. He cited unsigned letters from the White House press office delivered in the days after the lawsuit was filed, identifying a handful of stories the administration viewed as “misinformation” or “national security” risks.
Velchik argued that the outlets “defaulted” by failing to respond to those letters. He also repeatedly attributed the letters to Trump himself, even though they were unsigned and Trump never referred to them publicly.
Boutrous, calling this after-the-fact effort a “sham process,” underscored the absence of any indication Trump had signed off on — or even had any awareness of — the letters.
Velchik also repeatedly argued that the courts should give the president more leeway than might apply in other contexts, where decisions about reporters’ access are made by federal agencies.
“The White House is a sacred place,” Velchik said.
Kelly asked whether the president could ban a news organization from the White House based on stories that were demonstrably false. Boutrous said no, while Velchik articulated a more malleable standard.
“From our perspective, it’s within the discretion of the president,” Velchik said.
Kelly emphasized that his assessment of the issue was constrained by longstanding precedents that forbid the White House from barring access to the West Wing press areas based on disagreements with content, along with requirements that revoking such access must be based on clear standards and potential consequences spelled out in advance.
The Justice Department has said it disagrees with those decisions, but the judge made clear he is bound to follow them.
This story originally appeared on POLITICO and is courtesy of the Axel Springer Global Reporters Network, which harnesses the resources of the company’s newsrooms to publish ambitious scoops, investigations, interviews, opinion pieces, and analysis. It allows journalists — including those from POLITICO, Business Insider, WELT, BILD, Onet, and Fakt — to collaborate on major stories for an international audience of hundreds of millions across platforms.
