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(Update: When we wrote today's post below, Donald Trump's media ban appeared to be near death's door, but it still was in place -- still taking breaths. All of that changed early this morning when U.S. District Judge Timothy Kelly granted a temporary restraining order that immediately restored White House access for the three news outlets -- CNN, MS NOW, and Politico -- Trump had banned. Here is the latest from The Washington Post:
Overnight: The judge said Trump’s move to ban CNN, MS NOW and Politico from the White House last week was likely unconstitutional. He told officials to immediately restore access.
Dig deeper: Read the judge’s order in full here.
After Trump banned Politico: Officials accused the outlet of violating standards, including by using anonymous sources. But, in an example they cited, the White House was the source.)
Donald Trump's media ban remains alive at this hour, but comments from the judge at a hearing yesterday indicate the ban might soon be on life support. Based on binding legal precedent, that is exactly where it belongs. A jointly published report at Reuters and Yahoo! News has details about a hearing that likely was closely watched by news outlets around the country -- plus countless Americans who believe that freedom of the press plays an important role in sustaining our democracy. Under the headline "Judge says Trump's White House may not comply with legal precedents," Jan Wolfe and Jack Queen write:
A U.S. judge told a hearing yesterday that President Donald Trump's decision to ban CNN, MS NOW, and Politico from the White House did not appear to comply with prior rulings by a federal appellate court, but did not issue an immediate ruling on whether the news outlets should have their access restored.
US District Judge Timothy Kelly held the hearing in Washington to consider a request by the news outlets for a temporary restraining order that would immediately reinstate their White House access while a legal challenge they filed on Monday plays out.
The outlets said the ban violated the US Constitution's First Amendment protections for freedom of speech and a free press as well as their rights to due process.
That last item about due process might be the central issue in the outlets' efforts to obtain a temporary restraining order that would immediately return them to the frontlines of White House news coverage. According to Reuters reporting, Judge Kelley pointed to two previous cases in the D.C. Circuit that seem to point heavily in favor of the news outlets. Wolfe and Queen report:
The judge said that two precedents from the US Court of Appeals for the District of Columbia Circuit make clear that journalists are entitled to due process before their White House press passes can be revoked. The judge added that it did not appear that the White House had given the three news outlets a meaningful opportunity to contest the revocation of their access.
"The government said those cases ... were wrongly decided," Kelly said. "Maybe they were wrongly decided, maybe they weren't. But as a district court judge I have to apply them. I think it is fair to say the process the circuit laid out in those two cases wasn't followed here."
Kelly said he would issue a ruling at a later time on the request for a temporary restraining order.
The two cases Kelly referenced are Sherrill v. Knight, 569 F. 2d 124 -- U.S. Court of Appeals, D.C. Circuit (1977) and Karem v. Trump, 960 F. 3d 656 -- U.S. Court of Appeals, D.C. Circuit (2020). Both cases are what legal types like to call "black letter law" -- in other words, they are straightforward, uncomplicated, and point directly in favor of one party -- the media outlets. If Trump gave any thought to relevant issues before issuing the ban, he certainly didn't ponder things enough. As it is, he has set his administration up for what should be a one-sided court trouncing. Its lawyers in the Trump Department of Justice (DOJ) might have no shame, but they should at least be embarrassed for winding up having to defend a ban that, by law, is indefensible. Wolfe and Queen write:
A lawyer for the news outlets told Kelly that they were banned without legally required advance notice or opportunity to contest the decisions.
"By ejecting and banning the plaintiffs from the White House without a semblance of due process here, defendants have imposed what really amounts to an unprecedented, unreasonable, and severe punishment," attorney Theodore Boutrous said.
Michael Velchik, a Justice Department lawyer, told the judge the Trump administration provided a sufficient explanation for the revocation of the press passes in letters sent to the news outlets on Tuesday. But the judge signaled skepticism of that argument, noting that the letters were sent after the revocation occurred and the lawsuit was 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, since it's a piece of paper they got saying, 'You've already violated this.'"
Did Velchik, the DOJ lawyer, violate his "duty of candor to the tribunal," as required by the ABA's Model Rules of Professional Conduct? I would say he came close to the edge, and that probably is an occupational hazard of representing Trump.
The hearing provided more evidence that the administration has learned "national security" is a magic phrase when it comes to getting a court to fall for a flawed legal argument and allow a Trump project to proceed. The administration tried that in documents supporting the president's "Triumphal Arch,"
and they are trying again with the legal ban. From the Reuters report:
In a legal filing on the eve of the hearing, the Justice Department argued that access to the White House is a privilege, not an entitlement, and that the president had the authority to suspend access by news organizations. The department also echoed Trump's contention that the bans are justified by national security concerns regarding news coverage by the outlets.
The news outlets have accused Trump of unlawful discrimination against them based on their viewpoints.
"The viewpoint discrimination is probably the clearest case in history. I mean, the president said, 'I don't like what you're publishing. I'm taking away your press pass based on that,'" Boutrous told the hearing.
"They are using national security as this talisman — these magic words," Boutrous said. "It is just a pretextual, post hoc effort to justify a blatant violation of due process."
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