Judge presses Justice Department on justifications for White House media ban

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 news outlets from the White House over what he said is their negative coverage of his administration.

U.S. District Judge Timothy Kelly is considering whether to grant the news outlets longer-term relief after issuing an order last month that temporarily blocked Mr. Trump's bans and required the White House to reinstate the reporters' access to the complex.

During the hearing, Kelly expressed skepticism about the Trump administration's justification for banning the reporters, repeatedly questioning why the government's arguments in court appeared to differ from Mr. Trump's public statements centered on negative news coverage.

Kelly's temporary restraining order was set to expire Thursday, but will remain in place through Tuesday. As a result, reporters for the three news outlets will continue to have access to the White House into early next week. The judge said he will issue his decision 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 depriving the news outlets and their reporters of White House access while the case proceeds. The president's ban impacts 78 credentialed journalists across the three media organizations, he said.

Mr. Trump, Boutrous said, has been making "nasty" comments about the press for many years and has made clear that his ban against CNN, MS NOW and Politico was a result of reporting that he dislikes. It appears the president "got up on the wrong side of the bed" and declared a ban on the three news organizations, he said.

But Michael Velchik, senior counsel of the Justice Department's Civil Division, said the president determined that reporters for the outlets failed to meet minimum professional journalistic standards and published articles that put national security at risk.

Still, Kelly, who Mr. Trump appointed, said the president "seems to have said publicly and on several occasions" that he was taking action "because of X and Y, and now the government is coming to court saying no, it was actually Z."

That fact pattern, he said, "is a hard one to find." Kelly said it will be an "uphill climb" for the government to identify cases where the decisionmaker says on-the-record he is taking specific action for reasons that differ from what is then laid out in court.

Kelly also pointed to a case decided by the U.S. 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 journalist fair notice that it may suspend their credential for purportedly unprofessional conduct and lay out meaningful standards that would be applied before punishing that reporter. 

The judge said surmounting the argument that the news outlets were denied due process is "probably the biggest hurdle" for the Justice Department.

Beyond questions of due process, Kelly also challenged the administration's assertion that its actions were based on professional journalistic standards rather than coverage the president dislikes.

Pressing Velchik to explain how negative reporting relates to the administration's stated justification 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 "portray the administration in a negative light?" he asked.

The question underscored a central sticking point in the dispute: whether the White House can justify restricting reporters' access based on professional standards and national security concerns when the president has publicly linked his decision to coverage he considers unfavorable.

The judge also asked the Justice Department lawyer to point to the "strongest" piece of evidence in the case record that would allow him to conclude that the government's motivation is to protect national security and that the ban accomplishes that goal.

In his temporary order issued late last month, Kelly said the news outlets were likely to succeed in arguing they were denied due process, since their journalists were not given prior notice that their reporting could lead to their White House access being rescinded or the opportunity to respond before they were banned. The judge said articles from CNN, MS NOW and Politico cited by the White House as justification for losing access were "routine" and, in some cases, written months ago.

The journalists regained access to the White House complex and had their press credentials returned nearly 12 hours after Kelly issued his order. But the White House has refused to allow CNN and Politico in the Oval Office and aboard Air Force One, places that are opened up to the press pool, a rotating group of journalists that covers the president's movements each day.

CBS News and CNN are both part of Skydance, the parent company formed following the merger of Paramount and Warner Bros. Discovery that was finalized this week.

Mr. Trump announced his ban in a post on Truth Social last month and said his decision was based on their "constant 'reporting' FAKE NEWS!" The president warned that "other Fake News Media Outlets" could also be stripped of their access to the White House.

The morning after he announced the ban, reporters from each of the three outlets who arrived at the White House for work were turned away and had their passes confiscated by the Secret Service.

CNN, MS NOW and Politico filed their joint lawsuit on Sept. 21 and asked for a temporary order blocking enforcement of the president's ban.

The following day, the White House sent letters to each of the three news outlets informing them that certain articles they had published on topics including the new White House ballroom, the ongoing war with Iran and the Republican midterm convention were threats to national security and violated standards of "professionalism and decorum" for reporters. 

Most of the articles identified by the White House, which it said "threatened national security and/or spread falsehoods," were authored by reporters who do not have White House press credentials. Additionally, one piece from Politico, published in June, was based on a press call organized by the White House. During that call, the White House instructed reporters to attribute quotes to a "senior administration official," according to court papers.

The White House gave CNN, MS NOW and Politico a Sept. 25 deadline 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" denies them due process. The administration's "professionalism" standards and purported national security concerns are too vague under two appeals court decisions to ensure adequate notice, they said.

"At base, the empty, malleable supposed standards cited by the White House do nothing but authorize Defendants to punish reporting they dislike in violation of the Due Process Clause and First Amendment," Boutrous said in a filing. 

Boutrous also argued CNN, MS NOW and Politico are entitled to relief on First Amendment grounds. The ban unconstitutionally retaliates against the three outlets for newsgathering and speech, 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 has continued to retaliate against them even after Kelly's temporary order, demonstrating that the White House's "motive is to punish and chill journalism they dislike."

Since announcing the ban, the White House has "sought to justify the President's 'ban on the free press' with a series of shifting rationales, lurching from unarticulated standards of professionalism to nebulous and pretextual concerns about protecting national security," Boutrous said in a filing. "But all the while, the President himself has continued telling anyone who will listen precisely what this ban is really about."

The Justice Department has defended Mr. Trump's ban and said it is allowed under the First Amendment because he has two compelling reasons for denying CNN, MS NOW and Politico White House access: enforcing minimum standards of professionalism for journalists and safeguarding national security information.

"At a bare minimum, it is a significant violation of decorum to publish classified and sensitive national security information," Velchik wrote in a filing.

The Justice Department also argued that the news outlets are unlikely to prevail on their due-process argument because the White House provided them "adequate notice" that their journalists' conduct could lead to the ban and the opportunity to respond. In the letters, the president informed the reporters "about the principles of decorum expected and required" of reporters who cover the White House, Velchik  said.

"After all, access to the White House is a privilege — not a right," he wrote.

Mr. Trump has continued to denounce the news outlets targeted by the ban, telling reporters that he only wants "real news, not fake news" organizations covering him. 

When asked by Time magazine last week about the impetus for the ban, the president said, "it's just bad story after bad story."

"I don't think anybody should be forced to bear fake news, constantly bad stories, because I've done great things," Mr. Trump said.