Nicolai Haugsted
Trump’s crackdown on CNN, MS NOW and Politico backfires as a judge temporarily overturns the ban.
Donald Trump wanted three major news organizations out of his White House. Less than a week later, a federal judge has effectively handed them their badges back.
CNN, MS NOW and Politico scored an early legal victory Thursday after US District Judge Timothy Kelly ordered the Trump administration to immediately restore their journalists’ White House credentials.
Kelly concluded that the outlets had met the demanding legal standard required for emergency relief while their wider constitutional challenge proceeds.
“This is a high bar, but Plaintiffs have met it,” Kelly wrote according to The Guardian.
His temporary restraining order lasts 14 days and represents a significant setback for Trump’s latest attempt to control which journalists receive access to his administration.
Trump’s ban lasts less than a week
Trump announced on September 18 that CNN, MS NOW and Politico would no longer be welcome at the White House.
Reporters from the organizations subsequently had their hard passes deactivated and were denied entry to the complex.
Trump made little secret of his anger toward their journalism.
Writing on social media, the president said the three organizations “shouldn’t be able to constantly write or report FICTION and LIES.”
Trump had previously attacked them as “third rate clowns” and accused the outlets of producing overwhelmingly negative coverage about him.
CNN, MS NOW and Politico responded Monday by taking the president and members of his administration to federal court.
Their lawsuit argues that the ban violates First Amendment protections for freedom of speech and the press, as well as constitutional due-process protections.
Rather than waiting months or potentially years for the broader lawsuit to run its course, the organizations asked Kelly to restore their access immediately.
He agreed.
There was a problem with how Trump did it
Much of Kelly’s initial reasoning focused on something considerably less glamorous than Trump’s wider battle with the press: procedure.
Previous court decisions have established protections for journalists holding White House credentials.
“The ‘general rule’ is that ‘individuals must receive notice and an opportunity to be heard before the Government deprives them’ of a constitutionally protected interest,” Kelly wrote.
Kelly found that the administration had not provided “constitutionally adequate due process” before stripping the journalists of their credentials.
During Wednesday’s hearing, he pointed to earlier case law requiring notice before a White House hard pass is suspended or revoked.
Prior decisions, Kelly explained, established that “before a journalist’s White House hard pass was suspended or revoked, that the journalist was entitled to pre-deprivation notice and an opportunity to be heard.”
Letters explaining the administration’s reasoning did eventually arrive.
Unfortunately for the government’s argument, they came after the journalists had already lost their access and after the lawsuit had already been filed.
National security argument gets a frosty reception
Trump’s Justice Department offered another justification for removing the outlets.
Government lawyers argued that reporting by the organizations had created national security concerns and that access to the White House should be considered a privilege rather than an entitlement.
Kelly was not particularly persuaded by the evidence presented so far.
“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,” he wrote.
Kelly also noted that the administration had provided no evidence showing how the stories identified by the government had actually harmed national security.
“For one thing, nothing in the record that predates this suit suggests that the revocation of Plaintiffs’ hard passes was motivated by national security concerns,” he wrote.
Another detail hardly helped the government’s case.
Journalists responsible for the articles later singled out by Justice Department lawyers did not themselves hold the hard passes that Trump revoked.
Trump’s own judge delivers the setback
Kelly is hardly an obvious judicial antagonist for Trump.
Trump nominated him to the federal bench during his first presidency in 2017.
History between the pair also contains a rather remarkable precedent.
Kelly was the judge who ruled against the Trump White House in 2018 after CNN correspondent Jim Acosta lost his press credentials following a heated press-conference exchange with the president.
Kelly ordered Acosta’s pass temporarily restored after finding due-process problems with the administration’s handling of that dispute.
Eight years later, Trump has found himself facing the same judge over another fight with CNN and White House press credentials.
Trump apparently saw trouble coming.
Before Kelly issued his latest ruling, the president publicly suggested that he expected to lose and complained about the judge despite having appointed him himself.
Fox News joins CNN’s side
Trump’s decision to exclude the outlets also managed to produce a rare display of unity among American news organizations.
Major television networks declined to replace CNN after it was prevented from performing its scheduled duties in the White House television pool.
ABC, CBS, NBC and Fox News stood alongside CNN, while a broader coalition of news organizations and press-freedom groups backed the three plaintiffs in court.
The Reporters Committee for Freedom of the Press, Reuters, The Washington Post and Fox News were among those supporting a legal brief challenging the restrictions.
Their argument was straightforward: presidents cannot decide which journalists receive access based simply on whether they approve of their coverage.
The organizations argued that “stripping journalists and news outlets of their rights because of perceived editorial viewpoint violates decades of supreme court jurisprudence.”
