A federal judge overseeing a lawsuit to restore White House access to three major news organizations says Donald Trump’s administration appears to have failed longstanding legal precedent that requires due process before stripping passes from reporters.
U.S. District Judge Timothy Kelly, was appointed by the president during his first administration, had previously ordered the White House to restore then-CNN reporter Jim Acosta’s press pass in 2018.
When deciding that case, Kelly relied on previous court decisions that determined journalists are entitled to a “pre-deprivation notice and opportunity to be heard” before those passes are revoked, the judge said during Wednesday’s court hearing in Washington, D.C.
“I think it is fair to say that the process the court laid out [in those cases] wasn’t followed here,” Kelly said before arguments began Wednesday.
Last week, the White House revoked press passes from journalists from CNN, MS NOW and Politico and blocked them from entering White House grounds after the president announced he was “banning” the publications “effective immediately” for what he called their “FAKE” reporting.
Trump and the Department of Justice have accused the outlets of endangering national security by reporting sensitive and classified information that the president has also called “fake news” that is “negative, wrong and, in many cases, DANGEROUS for our Country.”
“Media Outlets shouldn’t be able to constantly write or report FICTION and LIES when they’re covering the President of the United States, the Trump Administration, or the United States of America,” he wrote on Truth Social September 18. “Other Fake News Media Outlets to follow.”
A federal lawsuit filed by lawyers representing the outlets accuses the Trump administration of “brazenly” violating their First Amendment rights and due process requirements under the Fifth Amendment by discriminating against them based solely on their editorial viewpoint.
Other news organizations agreed to an effective blackout of pool coverage in solidarity with the banned networks. ABC, CBS, CNN, NBC and Fox News — major networks that cover the president as part of the well-connected TV pool that patches transmissions to outlets worldwide — suspended their coverage, and other outlets announced they were temporarily withholding the publication of pool photographs.
Theodore Boutrous Jr., a lawyer for the outlets, said there hasn’t been a “semblance of due process here.”
But if the judge was to merely force the Trump administration to provide reporters with some recourse, “the shenanigans will continue,” he told Kelly.
“You can see where we’re headed here,” with “a series of faux due process efforts” to satisfy the courts while continuing to violate the outlets’ First Amendment rights, Boutrous Jr. said.
“It’s so over the top,” he said. “It’s clear retaliation.”
On Monday, Trump denied launching an “assault on the Free Press” and said he is instead “instituting an assault on the FAKE NEWS, something that has grown like Cancer in our beloved United States of America.”
“It is corrupt, purposeful, pervasive, fully coordinated, and totally out of control,” he wrote on Truth Social. “It is a threat to our National Security, and must be stopped, NOW!”
Sensing a potential loss in the federal court battle, he vowed an appeal “because Fake News people and publications that only write negatively, and who violate our National Security by writing false and defamatory stories with unknown ‘sources,’ shouldn’t be allowed access to the most important Office anywhere in the World.”
He lashed out at “Third Rate Clowns” who “purposefully distort, twist, and degrade with everything they write or publish.”
“Virtually every story about me, or anything having to do with me, is negative, wrong and, in many cases, DANGEROUS for our Country!” he wrote. “No matter how GREAT my Achievements, they trivialize and demean.”
He also said he regretted appointing Judge Kelly.
In Tuesday’s late-night filing, the Justice Department accused the outlets of threatening national security and breaching standards of conduct, including “trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information.” No law explicitly makes it a crime for a journalist to obtain or publish classified information.
“Access to the White House is a privilege — not a right,” the filing states.
The filings included copies of letters from the White House Press Office to the three outlets sent on September 22. The letters point to their reporting on the U.S. military’s munitions shortages due to the ongoing Iran war as well as the administration’s proposed security additions to the White House ballroom — details that the Justice Department itself has discussed at length in court filings stemming from the ongoing lawsuit against the project.
The White House also pointed to a report about low attendance at the Republican midterm convention in Dallas that “cites unnamed sources” to paint the event “as a disaster.” (That report from Politico cited a Republican lobbyist close to the White House who said “the vibes are very bad.”)
Only one of the four articles published by CNN and one of the three offending MSNOW articles were written by reporters with White House passes, according to officials at the network.
The White House also pointed to reports of an alleged FBI leak investigation focusing on a journalist and an apparent U.S. military strike on an Iranian girls’ school that killed 156 civilians, including 120 children.
“Publication of sensitive security information, and misinformation about national security information, diverts White House resources and those of the national security team in particular, which must evaluate whether the leaked information is classified, the source of any leak, and the security implications of any such disclosure,” the White House Press Office wrote in letters to the news outlets.
“The spread of misinformation, especially relating to national security, is a threat that undermines the President’s ability to safeguard the national security,” the letters state.
The outlets were given until 5 p.m. September 25 to “contest this initial decision or the factual basis” for their removal.
On Wednesday, a coalition of more than 50 news organizations and press freedom groups filed a brief in support of the outlets, writing that the White House ban over the content of their reporting amounts to unconstitutional viewpoint discrimination.
“It is designed to have a chilling effect,” they wrote, “with the hope that it discourages other outlets from publishing stories that they fear might provoke similar sanctions.”
