A US judge is considering the possibility of re-allowing CNN, MSNBC and Politico into the White House

A US judge considered the possibility of re-allowing CNN, MSNBC and the Politico website to enter the White House, after a 45-minute hearing, on Wednesday, in a lawsuit that challenged the ban imposed by US President Donald Trump late last week.

At the outset, Judge Timothy Kelly noted that the White House had not afforded journalists due process, according to relevant case law, before revoking their right of access, but he also asked questions to test the strength of these media organizations' arguments in the face of the administration's national security justifications for the ban.

The hearing addressed the main arguments made by the news organizations, with their attorney telling the judge that Trump was attacking "the heart of the First Amendment," asserting the lack of due process.

Meanwhile, Justice Department lawyers focused heavily on the national security justifications the administration is currently using to justify the ban, insisting that the president has the final decision on who is allowed into the White House.

The media is demanding that Judge Kelly re-allow her entry immediately pending the decision of the case, and Kelly promised to issue a ruling “as soon as possible.”

Here are the highlights of the session:

The judge explained the precedent, noting that he had considered a similar case involving access to CNN during Trump's first term.

Kelly, who was appointed as a judge during Trump's first term, began the hearing by pointing out an irony in his assignment of this case: He oversaw a case that challenged Trump's first serious attempt, in 2018, to oust a journalist from the White House.

In that case, involving the revocation of a White House press pass held by journalist Jim Acosta, then with CNN, Judge Kelly issued a temporary order reinstating Acosta's pass, citing a 1977 case holding that press pass holders have the right to due process before revoking their White House pass.

“I was assigned to the Acosta case many years ago, and I was as surprised as anyone when I delved into the law of that case,” Kelly said, referring to the 1977 case.

He declined to say whether he believed that and similar case law was valid, but said: “Certainly, as a lower court judge, I have to apply it, and I think it's fair to say that the procedures that the court established in these cases...were not applied here.”

Media defense response

Ted Boutros, a lawyer for the news organizations, rejected an idea floated by the administration that the letters the White House sent to the three media organizations on Tuesday night about the ban are enough to overcome the news organizations' claims of due process in the case. Boutros called the White House letters "post hoc" and "pretextual," and that they do not meet the requirement, according to case law, that the government must provide clear standards and advance notice before barring a journalist from the White House.

The letters described several reports written by journalists as "posing risks to national security," and Boutros described those reports as "ordinary reports."

He noted that of the numerous reports mentioned in the letter to CNN, only one was written by journalists holding a special pass — a pass that gives journalists regular access to the White House.

The journalist wrote the report in question, which dealt with plans to build a shelter under the ballroom in the East Wing, and her permit was renewed over the summer, several months after the report was published.

First Amendment rights

Boutros also focused on the national security arguments currently being relied upon by the White House. He argued that this justification was "made up in hindsight, and violates constitutional protections for journalists." "What the president is objecting to is the essence of the First Amendment," he said.

Kelly asked a few questions to test whether there was a scenario in which a national security justification would be an appropriate reason to deny a journalist access to the White House. His first question was the assumption that a journalist was leaking classified information to a foreign enemy.

In response, Boutros emphasized that the current circumstances were very different from that scenario but acknowledged that if the Secret Service - as it examines whether an entry clearance applicant poses a risk to the president's security - finds this type of concern, the White House could act on it.

Kelly then asked whether the content of a story published by a journalist could pose a national security risk that would justify barring him from the White House. Boutros flatly rejected this kind of justification, saying: “Once you take that approach, it becomes blatant viewpoint discrimination.”

Justice Department: Trump has “absolute power”

The Trump administration has maintained that the issue is clear: Trump has the right to decide who can enter the White House.

The argument by Michael Vilcek, a Justice Department lawyer, aimed to refute allegations that the White House violated principles of “due process” by barring journalists from entering without warning.

Vilcek explained that Trump's decision "was consistent with guidelines derived from previous judicial rulings, which stipulate the necessity of granting media organizations the right to appeal any decision to suspend or cancel permits."

The letters sent by the White House on Tuesday to these institutions included a statement that journalists can submit their objections to the ban by Friday evening, after which a final decision will be taken in this regard.

However, the judge pointed out that this mechanism was not introduced until after the announcement of the decision to cancel the permits. He also pointed out that the journalists confirm that they were not informed of any new requirements for obtaining a press card, in addition to that they did not receive any warning indicating that they had violated those requirements.

Vilcek also argued that media coverage of the institutions whose permits were revoked “endangered national security, which constituted sufficient reason to immediately restrict their right to entry.”

He stressed that these concerns are of utmost importance at the present time in light of the visit by Chinese President Xi Jinping to Washington.