A federal judge on Wednesday questioned the Trump administration’s decision to revoke CNN, MS NOW and Politico’s White House access, saying the government appeared not to have followed the required process before barring the outlets.
U.S. District Judge Timothy Kelly zeroed in on due process during a hearing on the outlets’ request to immediately restore their access, saying the process required under previous court decisions “wasn’t played out here.” Kelly did not rule from the bench Wednesday.
“Before we get to any core First Amendment issues, there is a due process claim and a due process issue that seems to me the first stop in figuring out how to resolve the motion,” Kelly said.
The focus on due process could prove central to the outlets’ bid to regain access. Previous federal court rulings require the White House to give journalists notice and an opportunity to respond before revoking their press credentials — steps the outlets argue they were denied.
Kelly pointed to two previous rulings from the U.S. Court of Appeals for the D.C. Circuit establishing due process protections for journalists whose White House credentials are revoked.
“The government said those cases … were wrongly decided,” Kelly said. “Maybe they were wrongly decided, maybe they weren’t. But as a district court judge I have to apply them.”
CNN, MS NOW and Politico sued the Trump administration Monday, arguing that the ban violates their First Amendment rights as well as their right to due process. The outlets are seeking a temporary restraining order that would restore their access while the broader lawsuit proceeds.
Theodore Boutrous, an attorney representing the news organizations, argued Wednesday that they were barred without advance notice or an opportunity to contest the decision.
“By ejecting and banning the plaintiffs from the White House without a semblance of due process here, defendants have imposed what really amounts to an unprecedented, unreasonable and severe punishment,” Boutrous said.
The Justice Department, meanwhile, defended the ban in a filing Tuesday, arguing that access to the White House is a “privilege — not a right” and that the president has the authority to suspend the organizations’ access. The administration has also cited national security concerns involving reporting by the three outlets.
Justice Department attorney Michael Velchik argued Wednesday that letters the administration sent to the outlets Tuesday provided sufficient explanation for revoking their passes. But Kelly appeared skeptical, noting that the letters came after the outlets had already been barred and filed their lawsuit.
“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, since it’s a piece of paper they got saying, ‘You’ve already violated this,’” Kelly said.
Trump announced Friday that CNN, MS NOW and Politico would no longer be allowed access to the White House, accusing the organizations of reporting “fiction and lies.” Reporters from all three outlets were turned away from White House grounds Saturday, with the organizations saying their press passes had been confiscated.
The fight has extended beyond the courtroom. CNN was scheduled to handle White House television pool duties Monday, but ABC News, CBS News, Fox News and NBC News declined to replace CNN’s camera crew, effectively suspending the usual pooled television coverage of the president.
“The public has a vital interest in receiving accurate, independent information about its government. No administration should restrict a news organization because it objects to its reporting,” the five networks said in a joint statement Monday.
Kelly is also familiar with disputes over White House press access. In 2018, he ordered the White House to temporarily restore then-CNN White House correspondent Jim Acosta’s press credential after the Trump administration revoked it following a contentious press conference. Kelly granted CNN a temporary restraining order after finding the network was likely to succeed on its due process claim, without deciding the underlying First Amendment dispute.
Kelly said he would issue a ruling on the outlets’ request “as soon as I can.”
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