Washington- The Justice Department and lawyers for CNN, MS NOW and Politico were back in court Thursday in the legal battle over President Trump’s decision to ban reporters from the three White House media outlets because of what he called negative coverage of his administration.
U.S. District Judge Timothy Kelly is considering longer-term relief for media outlets after issuing an order last month temporarily blocking Mr. Trump’s bans and requiring the White House to restore journalists’ access to the complex.
During the hearing, Kelly expressed skepticism about the Trump administration’s rationale for banning journalists, repeatedly questioning why the government’s arguments in court appeared to differ from Mr. Trump’s public statements focused on negative media coverage.
Kelly’s temporary restraining order was set to expire Thursday, but will remain in effect until Tuesday. As a result, journalists from all three media outlets will continue to have access to the White House until early next week. The judge said he would rule on the journalists’ request for a preliminary injunction no later than Tuesday.
During the hearing, Ted Boutrous, who argued on behalf of the trio of news organizations, urged Kelly to impose a preliminary injunction preventing the White House from denying media outlets and their reporters access to the White House while the case progresses. The president’s ban affects 78 accredited journalists at the three media organizations, he said.
Mr. Trump, Boutrous said, has made “mean” comments about the press for many years and has made it clear that his ban from CNN, MS NOW and Politico was the result of reporting he didn’t like. It appears the president “got on the wrong side of the bed” and declared a ban on all three news outlets, he said.
But Michael Velchik, senior attorney for the Justice Department’s Civil Division, said the president determined that media reporters were failing to meet minimum professional standards for journalism and were publishing stories that endangered national security.
Yet Kelly, whom Mr. Trump appointed, said the president “seems to have said publicly and repeatedly” that he was taking action “because of X and Y, and now the government has come to court and said, no, it was actually for Z.”
This factual pattern, he says, “is difficult to find.” Kelly said it would be an “uphill climb” for the government to identify cases in which the decision-maker goes on record saying he or she is taking specific actions for reasons that differ from those that are then laid out in court.
Kelly also highlighted a case decided by the United States Court of Appeals for the District of Columbia Circuit in 2020. In that case, the D.C. Circuit ruled that the White House must provide a reporter with reasonable notice that it could suspend their credentials for allegedly unprofessional conduct and establish meaningful standards that would be applied before punishing that reporter.
The judge said overcoming the argument that the media was not given due process was “probably the biggest hurdle” for the Justice Department.
Beyond due process issues, Kelly also disputed the administration’s assertion that its actions were based on professional journalistic standards rather than coverage the president doesn’t like.
Pressing Velchik to explain the connection between the negative reporting and the administration’s stated rationale for the ban, Kelly asked: Is it a violation of minimum journalistic standards to “portray the administration in a negative light?” »
Is it a violation of minimum journalistic standards to “present the administration in a negative light”? he asked.
The question highlighted a central point of the conflict: Whether the White House can justify restricting journalists’ access based on professional standards and national security concerns when the president has publicly linked his decision to media coverage he considers unfavorable.
The judge also asked the Justice Department’s lawyer to cite the “strongest” piece of evidence in the record that would allow him to conclude that the government’s motivation is to protect national security and that the ban achieves that goal.
In his temporary order issued late last month, Kelly said the media would likely succeed in arguing that they did not receive due process, as their reporters were not informed in advance that their reporting could lead to their access to the White House being revoked or the opportunity to respond before they were banned. The judge said the articles from CNN, MS NOW and Politico cited by the White House to justify the loss of access were “routine” and, in some cases, were written months ago.
The journalists regained access to the White House complex and their press credentials were returned nearly 12 hours after Kelly issued his order. But the White House refused to allow CNN and Politico into the Oval Office and aboard Air Force One, places open to the public. press pool, a rotating group of journalists who cover the president’s movements every day.
Both CBS News and CNN are part of Skydance, the parent company created following the merger of Paramount and Warner Bros. Discovery finalized this week.
Mr. Trump announced its ban in an article on Truth Social last month and said his decision was based on their constant “reporting” of FAKE NEWS! The president warned that “other fake news outlets” could also have their access to the White House removed.
The day after the ban was announced, journalists from each of the three media outlets arrived at the White House to work were turned away and their passes were confiscated by the secret services.
CNN, MS NOW and Politico filed their joint complaint on September 21 and requested a temporary order blocking enforcement of the presidential ban.
The next day, the White House sent letters to each of the three media outlets informing them that certain stories they had published on topics such as the new White House ballroom, the ongoing war with Iran, and the midterm Republican convention posed threats to national security and violated standards of “professionalism and decorum” for journalists.
Most of the articles identified by the White House, which it said “threaten national security and/or spread falsehoods,” were written by journalists who do not have White House press credentials. Additionally, a Politico article, published in June, was based on a press call organized by the White House. During that call, the White House asked reporters to attribute the quotes to a “senior administration official,” according to court documents.
The White House gave CNN, MS NOW and Politico September 25 to respond to the letters, but the Justice Department said each declined to do so.
In urging the judge to continue blocking Mr. Trump’s ban, lawyers for CNN, MS NOW and Politico said it “blatantly” denied them due process. The administration’s standards of “professionalism” and alleged national security concerns are too vague in light of two appeals court rulings to ensure adequate notice, they said.
“At their core, the so-called empty and malleable standards cited by the White House do nothing more than empower defendants to punish reporting they don’t like in violation of the Due Process Clause and the First Amendment,” Boutrous said in a filing.
Boutrous also argued that CNN, MS NOW and Politico were entitled to relief on First Amendment grounds. The ban constitutes unconstitutional retaliation against the three news-gathering and speech outlets, and was based on the president’s dislike of their “negative” coverage of him and his administration, he said.
The plaintiffs noted that the Trump administration continued to retaliate against them even after Kelly’s temporary order, demonstrating that the White House’s “motive is to punish and deter journalism they do not like.”
Since announcing the ban, the White House “has sought to justify the president’s ‘ban on the free press’ with a series of shifting justifications, moving from unspoken standards of professionalism to nebulous, pretextual concerns about protecting national security,” Boutrous said in a statement. “But all the while, the president himself has continued to tell anyone who will listen what this ban really is.”
The Justice Department defended Mr. Trump’s ban and said it was permissible under the First Amendment because he had two compelling reasons to deny access to CNN, MS NOW and Politico White House: upholding minimum standards of professionalism for journalists and protecting national security information.
“At a bare minimum, the release of classified and sensitive national security information constitutes a significant violation of decorum,” Velchik wrote in a statement.
The Justice Department also argued that the media outlets are unlikely to make their due process argument because the White House provided them with “sufficient notice” that their reporters’ conduct could lead to the ban and opportunity to respond. In those letters, the president informed reporters “of the principles of decorum expected and required” of journalists covering the White House, Velchik said.
“After all, access to the White House is a privilege, not a right,” he wrote.
Mr. Trump continued to denounce the media outlets targeted by the ban, telling reporters that he wanted only “real news, not fake news” to be covered by the organizations.
Asked last week by Time magazine what prompted the ban, the president responded: “It’s just one bad story after another bad story.”
“I don’t think anyone should have to put up with fake news, constantly bad stories, because I’ve done great things,” Mr. Trump said.
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