Judge Will Rule By Tuesday On Trump Ban On CNN, MS NOW & Politico

A federal judge said he will rule by Tuesday on Donald Trump‘s ban on CNN, MS NOW and Politico from White House grounds, while he pressed the government’s lawyers on the different justifications offered by the president and in the DOJ’s legal defense.

U.S. District Judge Timothy J. Kelly, an appointee of Trump’s in his first term, also extended a temporary restraining order through Tuesday, which restricts the White House from pulling the hard passes of nearly 80 journalists and other staffers from the three outlets.

Thursday’s hearing was over whether to grant a preliminary injunction, something that would block Trump’s ban for a longer term — at least until a trial or an appeal. The judge issued a two-week TRO on Sept. 24, almost a week since the president announced the ban, concluding that media outlets were not given due process. That forced the White House to return the press credentials to the reporters and allow them back on the grounds.

Theodore Boutrous Jr., representing the three outlets, told the judge that the case “has gotten stronger for the plaintiffs thanks to Donald Trump.”

Boutrous pointed to an interview that Trump gave to Time, published on Sept. 28, in which he complained about the media publishing “bad story after bad story,” and never mentioned the government’s defense of the ban, centered on the outlets’ publication of national security information.

“That is pretextual, it’s post hoc,” Boutrous told the judge.

In the courtroom, Boutrous and four other attorneys sat at the plaintiffs’ table, while there was just one attorney on the defense side, representing the White House. That was Michael Velchik, senior counsel in the DOJ’s civil division. Also present in the gallery were editors and reporters from the outlets, including CNN’s David Chalian and Jonathan Greenberger, Politico’s global editor in chief.

Velchik told the judge that the ban is justified because the outlets had engaged in “indefensible conduct,” and he pointed to claims that stories contained false quotes and anonymous sourcing, and that access to the grounds is a “privilege” under the president’s discretion. When it came to national security, he said, “If CNN published nuclear codes, the government is not helpless.”

Kelly, though, pressed Velchik on the different explanations, where “the decision maker seems to have said, ‘We are taking action because of X, Y,’ and the government is saying, ‘No, it’s Z.’”

“It just seems like the fact pattern is hard to find,” the judge said.

Velchik said that the government never said that the ban was solely about national security, citing another justification that the outlets failed to meet minimal journalistic standards. Those to justifications, Velchik said, also overlap.

The DOJ attorney also argued that the three outlets forfeited their right to appeal the ban, because letters were sent out on Sept. 22, informing them of specific stories at issue, but they never filed an objection to the White House with a deadline at the end of the week.

Boutrous, though, noted that the letters were sent off days after the ban was implemented and the media outlets filed suit. The letters were unsigned and merely started they came from the White House Press Office. He described it as a “sham process,” and that it was clear that by then, “The president already made up his mind.” He at one point suggested that the president “woke up on the wrong side of the bed” and decided to issue the ban, even if there was no immediate urgency. Boutrous also warned that setting professional editorial standards was “amorphous,” even when it comes to punitive measures over reporting that is false.

“If a press pass is at risk because Donald Trump decides something is false, that is a very chilling” standard, Boutrous said.

The judge did seem receptive to points made that there is a government interest in protecting national security, but he made clear that he is bound by past D.C. Circuit precedent, including cases that favored journalistic access to the White House over attempts to restrict certain correspondents.

In the meantime, the White House has restricted CNN and Politico from access to various presidential events, including travel on Air Force One as the designated pool outlet. The three outlets have pointed to the continued restrictions as further evidence of viewpoint retaliation, but the legal question of whether blocking access to smaller spaces like the Oval Office and on presidential travel is the subject of a separate legal proceeding involving the Associated Press.

More to come.