Judge extends block on Trump White House ban of MS NOW, CNN and Politico

A federal judge late Tuesday night indefinitely extended his block on the White House from enforcing a ban on three media outlets that President Donald Trump announced in mid-September.

The preliminary injunction by Judge Timothy Kelly replaces his temporary restraining order against Trump's ban of MSNBC, CNN and Politico from the White House complex as a lawsuit challenging the ban plays out.

"President Trump's own comments suggest that he intended the revocation of Plaintiffs' hard passes to alter their reporting on him," wrote Kelly, who was nominated by Trump for his seat in U.S. District Court in Washington.

In his written opinion, Kelly said the three outlets were likely to succeed on their claim in their pending lawsuit, which argues they were denied due process when Trump summarily barred them without giving them a chance to argue against it.

The judge cited two existing opinions by the U.S. Court of Appeals for the District of Columbia Circuit, which establish a due process right to journalists whose White House passes are targeted for revocation. Those appellate opinions are binding on federal District Court judges in D.C.

The judge also said, for the first time in this case, the outlets were likely to succeed on two First Amendment claims in their civil suit, which allege retaliation and viewpoint discrimination.

Kelly's order Tuesday is not a final ruling on the merits of the suit. And it does not compel the White House to restore access to the Oval Office and Air Force One to the outlets.

Kelly brushed aside the Department of Justice's claim that in addition to concerns about inaccurate news stories, Trump decided to revoke the outlets' access to the White House on national security grounds.

"There is no evidence in the record that President Trump made the decision to revoke Plaintiffs' hard passes on national security grounds from the get-go, nor at any time has he directly stated that national security was the reason for his decision," Kelly wrote.

The judge said the DOJ's national security argument appears to be "merely a post-hoc justification for the decision" after the outlets sued.

"Still, no one should interpret the Court's decision to suggest that President Trump's concerns about accuracy and fairness in the media's reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed," Kelly wrote.

"That said, for the reasons explained below, the Court will extend the relief it already ordered, which will continue to preserve the status quo while this case proceeds," Kelly said, referring to his prior order that restored access by the outlets to the White House.

The judge said that without the preliminary injunction, the outlets were "likely to suffer irreparable harm."

His ruling came on the heels of a court hearing last Thursday, when the DOJ defended the ban, which reportedly led to 78 journalists having their so-called hard passes to the White House revoked before Kelly ordered them restored with his previous temporary restraining order.

Trump last month said he would appeal any decision by Kelly blocking his ban. CNBC has requested comment from the White House and DOJ.

Theodore Boutrous Jr., an attorney for the outlets, said in a statement, "We are grateful that the Court ruled in favor of our clients."

"When the President issued his 'ban on the free press,' he blatantly and explicitly violated due process and the First Amendment," Boutrous said. "Since then, the President has repeatedly, candidly, and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn't like and to try to force journalists to cover him in ways he prefers."

"The harm this ban did to our clients, the First Amendment, and the public as a whole is profound," the attorney said. "The Court was right to enjoin the White House from enforcing this "unconstitutional ban on the free press" for the foreseeable future."

Trump on Sept. 18 said that he was banning the three outlets because of how they have covered him.

In a Truth Social post that day, Trump wrote that the 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."

Trump later said that same day that he had become "sick" of "cumulative stories" by the outlets.

The ban took effect on the following day, Sept. 19, when journalists from the outlets were denied access to the White House grounds and had their permanent passes confiscated by Secret Service officers.

The outlets sued Trump on Sept. 21 in a civil complaint that said, "This ban could not be a more direct assault on the First Amendment nor a more blatant violation of our most fundamental constitutional principles."

Kelly, two days later, issued a restraining order that temporarily reversed the ban for at least 14 days. Journalists from the three outlets on Sept. 24 were allowed to return to the White House, and since then Kelly extended the restraining order to allow him time to consider whether to issue Tuesday's preliminary injunction, which has no set expiration date.