Trump Press Ban Back in Court Before the Acosta Judge

The Trump press ban is headed back before Judge Timothy Kelly after the Justice Department filed papers late Friday asking the court to let Trump once again block CNN, MS NOW and Politico from the White House.

The filing lands ahead of a hearing next week, where Kelly will decide whether to extend the order that put the three outlets’ reporters back on White House grounds. That order is temporary. It runs for two weeks and expires Oct. 8.

If the name Timothy Kelly sounds familiar, it should. Trump appointed him to the federal bench in Washington in 2017. A year later, Kelly was the judge who ordered the White House to give CNN’s Jim Acosta his press pass back after the administration revoked it. That 2018 ruling leaned on a 1977 appeals court decision holding that the White House has to give journalists due process, meaning fair notice and a chance to respond, before taking away their credentials. CNN dropped that suit once Acosta’s pass was restored. Now the same judge is handling a much bigger fight, with three newsrooms shut out at once.

Trump announced on Friday, Sept. 18 that he was banning the three outlets “effective immediately,” citing what he called their “constant ‘reporting’ FAKE NEWS.” The next morning, reporters from all three were turned away at the gate, and the Secret Service took their hard passes, the permanent badges that let White House reporters enter the grounds without being cleared every day.

The outlets sued two days later, arguing the Trump press ban violated the First Amendment and their right to due process. The White House then sent the outlets letters accusing them of “trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information.” The administration has pointed to stories the outlets ran about the Iran war, construction of the East Wing ballroom and the GOP’s midterm convention.

Kelly was not convinced. On Sept. 24 he issued a temporary restraining order, an emergency court order that freezes a policy for a short time while a judge looks at the case more closely. He wrote that officials offered “little to back up their asserted national security interest” and said the court was skeptical that protecting national security was the real motivation. He noted that some of the stories the White House cited were routine and, in some cases, months old. He also found the ban appeared to violate two federal appeals court rulings requiring advance notice before a journalist’s pass is pulled. Trump gave the outlets no warning. CNN’s Betsy Klein and MS NOW’s Laura Barrón-López were back on the grounds and reporting live that Thursday afternoon, though it took the White House nearly 12 hours to turn the badges back on.

Friday’s filing is the administration’s answer to the outlets’ push for something longer lasting. The Justice Department claimed the outlets “published stories that adversely affect national security, including publishing possibly classified or sensitive information,” and argued that cutting off their White House access “removes one avenue for these outlets to obtain such harmful information.”

The filing did not offer any new evidence that the outlets actually threatened national security. Instead, the department argued it does not have to prove the outlets “actually published classified information” to justify the Trump press ban, and it claimed that spreading “misinformation” is itself a national security risk. The department also described White House access as a “privilege” that comes with standards of “professionalism,” and argued that court precedent does not stop Trump from deciding that “bona fide journalists would identify sources instead of relying on anonymous sources, commit to factual accuracy, and provide the White House an opportunity to comment.”

That standard would reach far beyond these three newsrooms. Political reporters across the industry rely on anonymous sources, particularly government employees who could lose their jobs for speaking on the record.

The outlets say the last two weeks show exactly why they need more than a temporary fix. Even with Kelly’s order in place, the White House kept CNN off Air Force One last Saturday for Trump’s trip to a college football game in Tennessee. Some CNN and MS NOW reporters were kept away from events tied to Chinese President Xi Jinping’s state visit. On Thursday, the administration again blocked CNN from the press pool, the small rotating group of reporters that covers Trump at events too small for the full press corps. Asked about the judge’s order, Trump said he was not even aware of what it meant.

In their own filing Monday, lawyers for CNN, MS NOW and Politico called the Trump press ban an “unlawful assault on the most fundamental First Amendment freedoms” and said the administration’s conduct shows its “motive is to punish and chill journalism they dislike.” They wrote that the White House’s words and actions “leave little doubt that it will immediately reinstitute a complete ban” if given the chance.

What the outlets want now is a preliminary injunction, a court order that would keep their access in place for as long as the lawsuit lasts instead of two weeks at a time. They are also asking Kelly to rule outright that the ban violates the First Amendment, which their lawyers say would shut down further “shenanigans” by the White House to get around his orders. The outlets file their final written brief Monday ahead of next week’s hearing.