A federal judge questioned on Wednesday whether the Trump administration can rely on national security concerns to justify barring CNN, MS Now, and Politico from the White House.
Could national security reasons “ever be a winner?” U.S. District Judge Timothy Kelly asked a lawyer for the media outlets challenging President Donald Trump’s ban.
“Let’s say there was a real national security concern. The most extreme hypothetical you could imagine. That one of these journalists had passed on classified information to a foreign enemy of the United States,” Kelly said.
“Do you think that the president or someone in the White House could have pulled a press pass or a hard pass?”
“I think that’s a totally different circumstance,” the banned outlets’ attorney Theodore Boutrous replied.
Kelly also said the administration’s process did not appear to comply with two earlier D.C. Circuit rulings requiring due process before reporters’ hard passes can be revoked. One of those cases, Karem v. Trump, involved a White House pass suspension during Trump’s first term.
“The government said those cases were wrongly decided,” Kelly said at the hearing. “Maybe they were wrongly decided, maybe they weren’t. But as a district court judge, I have to apply them.”
Kelly added, “I think it is fair to say the process the circuit laid out in those two cases wasn’t followed here.”
At the conclusion of the hearing, Kelly said he would take the parties’ arguments under advisement and decide on whether to enjoin the ban on the three outlets as soon as possible. The outlets are seeking a temporary restraining order that would restore their access while their lawsuit against the Trump administration proceeds.
The White House banned the outlets on Friday after Trump said they should not be allowed to “constantly write or report FICTION and LIES when they’re covering the President of the United States.”
The outlets’ reporters were then denied entry to the White House grounds and had their credentials confiscated. CNN, MS Now, and Politico sued on Monday, alleging violations of the First Amendment and due process rights.
The Justice Department defended the decision in a response filing issued late Tuesday, arguing that White House access is a privilege rather than a right. The department said the president may exclude outlets that fail to meet standards of professionalism and decorum or publish sensitive information.
“Access to the White House is a privilege, not a right,” DOJ senior counsel Michael Velchik wrote.
In its latest court filing, the administration cited reporting on U.S. missile stockpiles, Iran war negotiations, construction of Trump’s ballroom, and planned Secret Service security improvements. It told the court that the outlets had engaged in reporting that “threatened national security,” an element that did not emerge at first when the ban was first issued, and one that the plaintiffs’ attorney quibbled with on multiple occasions during the Wednesday hearing.
The outlets argued that the White House transformed its ban justification in a “post hoc” manner, leaning on national security as a justification only after Trump publicly tethered it to coverage he dislikes.
“The viewpoint discrimination is probably the clearest case in history,” Boutrous told Kelly. “The president said, ‘I don’t like what you’re publishing. I’m taking away your press pass based on that.’”
“They are using national security as this talisman — these magic words,” Boutrous said. “It is just a pretextual, post hoc effort to justify just a blatant violation of due process.”
The administration said it gave the outlets an opportunity to respond in letters sent Tuesday that identified the reporting incidents it considered problematic. Kelly questioned whether those letters could supply meaningful notice after the passes had already been revoked and the lawsuit had been filed.
“I don’t know how a letter that they got after the pass was revoked could provide them with the notice of the kind of standards that they would have to conform their conduct to,” Kelly said, “since it’s a piece of paper they got saying, ‘You’ve already violated this.’”
Velchik said the letters gave the outlets a process to contest the administration’s findings.
“The president has set out notice of his determination that he personally made to identify this particularity and not exhaustive list of reporting incidents,” Velchik said. “He has provided a process for plaintiffs to contest these particular incidents.”
Boutrous responded that the process did not cure the problem.
“It’s not due process when there is a prejudgment of the issues,” he said.
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The hearing came months after the DOJ subpoenaed New York Times reporters over reporting on security concerns involving a Qatari-donated aircraft used as Air Force One. The reporting described possible gaps in the plane’s defensive capabilities, showing why reporting about aircraft or munitions can raise legitimate security questions. The subpoenas were later withdrawn after a judge questioned the government’s handling of the matter.
Trump indicated on Tuesday that access for the media outlets could be restored soon if Kelly rules against him. One day before, he said he plans to appeal if the ban is temporarily blocked.