A federal judge ordered the Trump administration on Thursday to temporarily restore access to the three media organizations banned from covering White House events last week by President Trump.
In a ruling issued shortly after midnight, U.S. District Judge Timothy J. Kelly for the District of Columbia granted a 14-day temporary restraining order to CNN, MS NOW and Politico, which had press credentials of their journalists covering the White House revoked on Saturday.
Yet the news outlets said some of their journalists were denied entry to the White House early Thursday morning. They have asked the court for an immediate hearing.
"A Secret Service agent confiscated the hard pass of journalists from all three organizations," the request submitted to the court said. "And when Plaintiff [CNN Reporter] Betsy Klein, whose hard pass was confiscated on Saturday, September 19, requested to have her hard pass returned, her request was denied and she was refused access to the White House complex."
CNN, MS NOW and Politico filed a joint lawsuit against Trump to challenge that decision on Monday, on the grounds that their constitutional rights had been violated. They sought a temporary restraining order on the ban that would allow them to report from the White House as the proceedings in the case continue.
In his ruling, Kelly ordered White House representatives to "immediately return, reinstate, and restore" their press credentials to reporters of the three news organizations.
Kelly, a Trump appointee, wrote that news outlets were "likely to succeed in showing that their hard passes were revoked without constitutionally adequate due process," and on the grounds that "'individuals must receive notice and an opportunity to be heard before the Government deprives them' of a constitutionally protected interest."
Trump told reporters on Friday that his decision to ban the three media outlets from the White House had not been sparked by any specific reporting but the accumulation of what he called "two years of unfair and negative coverage."
However, a court filing by the Department of Justice on Wednesday argued that the three news organizations were barred because their reporting jeopardized national security and spread falsehoods.
Judge appeared inclined to order the White House to restore access
On Wednesday afternoon, U.S. District Judge Timothy J. Kelly, who was nominated by Trump in 2017, held an emergency hearing after the news outlets filed a lawsuit seeking to undo the ban.
In his introductory remarks, Kelly said it appeared the White House had violated the news outlets' constitutional right of due process — which was set out in previous court decisions — when it abruptly blocked the access of journalists who held permanent credentials to work in the building.
During the emergency hearing on Wednesday, Theodore J. Boutrous, a lawyer representing the three news outlets, said the White House ban was in violation of CNN, MS NOW and Politico's First Amendment rights and called it a form of retaliation for their coverage of the president, adding that it was "probably the clearest case in history" of viewpoint discrimination.
Justice Department lawyer Michael Velchik, on the other hand, argued that access to the White House was a "privilege," not a right. He also cited national security concerns as a reason for the continued ban. In its legal filings, the department had included White House letters to the three news organizations taking issue with stories on a variety of topics, including construction of a "top secret" bunker under the White House ballroom, talks with Iran and whether there were "very bad" vibes at the recent Republican convention in Dallas.
Boutrous pushed back on the claim, asserting that the first mention of national security came only days after the ban was imposed.
" I guess the light bulb went off and they all decided 'Start talking about national security,'" Boutrous said.
Court ruling questions Trump's "actual motivation"
In his Thursday ruling, Kelly said "the court is skeptical — at least on this record — that Defendants' interest in safeguarding national security is the actual motivation for, or is even advanced by, the revocation of Plaintiffs' hard passes," in reference to White House press credentials.
In its court filing, in response to the lawsuit filed by the three media organizations, the Department of Justice included White House letters, dated Sept. 22, where it accuses the barred media outlets of "trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information." Judge Kelly argued that the defendants offered no evidence to explain how "any of the reporting they identified in their letters to Plaintiffs damaged national security." Adding that the reporters who authored the stories that the DOJ lawyers identified in their letters to the three media "did not even hold hard passes."
Kelly also wrote that "the record is bereft of any relevant 'formally articulated standards' in place before any of the conduct" for which the reporters had their credentials revoked. He dismissed the examples provided by White House in the letters to the three outlets as a standard "so vague it hardly does the trick."
Kelly also ruled out the urgency of the case as to deviate from due process.
"Nothing in the record suggests the need for such urgency here," adding that some of the news stories identified in the DOJ notices to the media "stretches back months or years."
"The sorts of stories Defendants identify in the letters to Plaintiffs are routine," he added.
Kelly's ruling came just hours after an emergency session by the federal court in Washington, D.C., on Wednesday afternoon in a case that media organizations and experts say will further test the First Amendment protections under the Trump administration.
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