A federal judge in Washington, D.C., heard arguments on Wednesday on President Donald Trump's controversial ban of three media outlets from the White House.
Judge Timothy Kelly ended the hearing without immediately ruling on a request by the outlets — MS NOW, CNN, Politico — to block Trump from continuing to bar them from the White House.
"I'll consider what you told me today. I'll try and get you an answer as soon as I can," Kelly told a lawyer for the outlets and a Justice Department attorney who defended the ban during the teleconference hearing.
The outlets in a lawsuit against Trump argue the ban violates the First Amendment of the U.S. Constitution, which protects free press rights by punishing them for the content of stories they have published about Trump and his administration.
"This is a clear retaliation case," Theodore Boutrous Jr., a lawyer representing the outlets, argued to Kelly at Wednesday's hearing.
The Justice Department, in a late Tuesday night filing, said Trump had barred the outlets on the grounds of national security concerns, and that the president had the legal right to do so. Trump did not cite that rationale when he announced the ban last Friday.
Kelly, at the beginning of the hearing, noted a 1977 ruling by the U.S. Court of Appeals for the District of Columbia Circuit had found that media outlets were entitled to due process in any decision affecting an outlet's holding of so-called hard passes to the White House.
The three media outlets were not warned before Trump's announcement that he was considering yanking their hard pass access.
"I think it is fair to say that process ... wasn't followed here, talking about predeprivation process," Kelly said.
The judge noted that the Justice Department, in defending Trump's ban, had argued that the 1977 ruling was wrong.
"There wasn't a semblance of due process here," said Boutrous. "This came completely out of the blue."
The attorney said Trump's public statements about the ban prove the outlets' argument that they are being targeted with "viewpoint discrimination" for how they cover the president and his administration.
Boutrous said that in Truth Social posts and in the Oval Office, Trump has said that he implemented the ban because "the coverage is too negative" and "purposely negative."
"He keeps saying the same thing," Boutrous said. "He keeps proving our point. He's literally our lead witness here."
Addressing the Justice Department's argument that the ban is justified on national security grounds, Boutrous said, "They're literally arguing that reporters shouldn't scrutinize national security."
The First Amendment protects the media's right to cover that subject, because "journalists can and should hold the government accountable," the attorney said.
Michael Velchik, an attorney for the Justice Department, opened his argument to Kelly by saying, "Access to the White House is a privilege, not a right."
Velchik also said, "The president should be able to take immediate action to protect national security."
The attorney also said Trump was not acting in retaliation against the three outlets.
"The president criticizes many people," but has only applied the determination that led to his ban to the three outlets, Velchik said.
The attorney noted that Trump has called ABC News "the worst." But the president did not ban ABC from the White House.
The Justice Department, in its court filing Tuesday, appeared to react to the outlets' claim that they had been denied due process by including three separate letters to the outlets that cited the grounds for their purported "initial" banning, and giving them until this Friday to respond to avoid a permanent ban.
Kelly, who was appointed to U.S. District Court in Washington, D.C., by Trump during his first term, could rule at any time.
Kelly in 2018 ruled against the White House when he ordered that it restore the access pass of then-CNN correspondent Jim Acosta, who had it revoked after a contentious exchange with Trump.
Trump in announcing the ban Friday, accused the outlets of "cumulative" stories that contained so-called "fake news" about him and his administration.
The ban took effect on Saturday, with journalists from the outlets having their access passes taken away by the Secret Service when they arrived at the White House.
The three outlets jointly sued Trump on Monday.
Disclosure: CNBC and MS NOW are divisions of Versant Media.
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