A US judge has cast doubt on the legality of Donald Trump’s ban on CNN, MS NOW and Politico from the White House, saying the decision did not appear to follow binding legal precedents on press access.
US District Judge Timothy Kelly, a Trump appointee, was considering an application by the three news organisations for a temporary restraining order that would restore their access while their wider legal challenge proceeds. He did not issue an immediate ruling.
The outlets argue that the White House ban breached the First Amendment protections for freedom of speech and a free press, as well as their right to due process.
Judge Kelly said two rulings by the US Court of Appeals for the District of Columbia Circuit established that journalists were entitled to due process before their White House press passes could be withdrawn.
He also questioned whether the outlets had been given a meaningful opportunity to challenge the decision. “I think it is fair to say the process the circuit laid out in those two cases wasn’t followed here,” he told the hearing in Washington DC.
The judge said the US Government had argued that the earlier cases were wrongly decided, but added: “Maybe they were wrongly decided, maybe they weren’t. But as a district court judge I have to apply them.”
Theodore Boutrous, representing the news organisations, said they had been removed and banned without advance notice or an opportunity to contest the decision. He described the action as an “unprecedented, unreasonable and severe punishment”.
A Justice Department lawyer, Michael Velchik, argued that the Trump administration had provided a sufficient explanation in letters sent to the outlets on Tuesday. The letters accused them of endangering national security through reporting on US missile stockpiles, the construction of Trump’s White House ballroom and attendance at the Republican Party’s recent midterm convention.
Judge Kelly questioned how the letters could have provided adequate notice when they were sent after the press passes had already been revoked and the lawsuit had been filed.
“I don’t know how a letter that they got after the pass was revoked could provide them with the notice of the kind of standards that they would have to conform their conduct to,” he said, “since it’s a piece of paper they got saying, ‘You’ve already violated this.’”
In a legal filing, the Justice Department said access to the White House was a privilege rather than an entitlement, and maintained that the president had authority to suspend access for news organisations. It also cited national security concerns raised by the outlets’ coverage.
The organisations have accused Mr Trump of discriminating against them because of their viewpoints. Mr Boutrous said the president had made clear that the bans were linked to his objections to their reporting, calling the national security justification a “pretextual, post hoc effort” to defend what he described as a violation of due process.
Mr Trump announced the ban on Friday on his social media platform, claiming the outlets should not be allowed to “constantly write or report FICTION and LIES when they’re covering the President of the United States.”
