U.S. District Judge Timothy Kelly declined Wednesday to immediately restore White House access for CNN, MS NOW and Politico, but questioned whether the administration followed established due-process requirements before indefinitely barring 78 journalists from the complex.
By yourNEWS Media Newsroom.
A federal judge declined Wednesday to immediately lift President Donald Trump’s White House ban on CNN, MS NOW and Politico, leaving the restrictions in place while signaling concerns about whether the administration followed legal procedures established in earlier press-access cases.
U.S. District Judge Timothy Kelly held a remote hearing Sept. 23 on the three news organizations’ request for a temporary restraining order that would restore their reporters’ credentials while their constitutional challenge proceeds.
Kelly did not rule from the bench.
“I’ll consider what you told me today and try to get you an answer as soon as I can,” Kelly said at the conclusion of the hearing.
The judge indicated during arguments, however, that the process used to revoke the outlets’ access appeared different from procedures required by previous federal court decisions involving White House press credentials. Reuters reported that Kelly said the administration’s actions did not appear to comply with precedents governing notice and an opportunity to respond before credentials are revoked.
Trump announced the ban Sept. 18, accusing CNN, MS NOW and Politico of producing “fake news.” The restrictions took effect the following day, when reporters from the three organizations were prevented from entering White House grounds and some credentials were confiscated.
The outlets sued Sept. 21, alleging that the administration violated both the First Amendment and their Fifth Amendment due-process rights. They asked Kelly to issue emergency relief restoring access while the lawsuit is litigated.
The administration subsequently sent letters dated Sept. 22 explaining its stated grounds for excluding the organizations.
According to those letters, the White House concluded that the outlets had violated “the standards of professionalism and decorum expected of those given access to the White House Complex, including by trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information.”
The administration cited reporting it contends revealed sensitive national-security information.
Its examples included CNN reporting what the White House described as “top-secret” details associated with construction of a new White House bunker and Politico reporting that administration officials were considering sanctions relief for Russia.
Government attorneys contend the restrictions were imposed because of conduct involving sensitive information rather than because the administration disagreed with the outlets’ political viewpoints.
Lawyers for CNN, MS NOW and Politico argued that the explanation arrived only after their reporters had already been barred and therefore could not satisfy constitutional requirements for advance notice.
Their attorney told Kelly that 78 journalists associated with the three organizations had been banned indefinitely “without any notice, without any standards being articulated.”
The outlets relied heavily on previous cases involving White House press credentials, including disputes arising during Trump’s first administration.
In 2018, the White House revoked CNN correspondent Jim Acosta’s hard pass following a contentious presidential news conference.
Kelly, who was appointed to the federal bench by Trump, ordered Acosta’s credential temporarily restored. He concluded at that stage that CNN was likely to succeed on its due-process claim because Acosta had not received sufficient notice of the reasons for the revocation, a meaningful opportunity to respond or an adequate written decision.
A separate case involving reporter Brian Karem produced another ruling concerning the process required before the government suspends a White House hard pass.
In 2019, a federal court ordered Karem’s credential restored while his case continued. The court concluded that he was likely to succeed on his due-process claim because the existing record showed that the White House had not provided fair notice that his conduct could result in suspension of his credential. The decision relied on longstanding D.C. Circuit precedent recognizing a protected interest in a White House hard pass once the government establishes a system for issuing such credentials.
Kelly referenced those earlier cases Wednesday while questioning attorneys about the procedures used against the three outlets.
“I think it is far to say that the processes … that the court laid out in those two cases … wasn’t followed here.”
A Justice Department attorney argued that the administration subsequently provided adequate due process by sending the Sept. 22 letters and establishing a process through which the organizations could contest the restrictions.
“The president should be able to take immediate action to protect national security,” the government lawyer said.
Kelly questioned whether an explanation delivered after access had already been revoked could provide the type of advance standard contemplated by earlier decisions.
“I don’t know how a letter that they got after their pass got revoked could provide them with the kind of standard that they would have to conform their conduct to,” Kelly responded.
The government and media organizations are also contesting a broader First Amendment question.
CNN, MS NOW and Politico contend Trump’s own public statements show that the restrictions were imposed because he objects to their reporting, making the ban unconstitutional viewpoint discrimination.
Trump originally announced the action by describing the organizations as “fake news,” while the outlets argue that the government cannot condition White House press access on favorable coverage. Their lawsuit says the restrictions amount to retaliation against constitutionally protected newsgathering and reporting.
Justice Department attorneys dispute that characterization.
They argue that “Access to the White House is a privilege, not a right” and maintain that the president has broad authority to restrict reporters from sensitive presidential spaces, particularly when national-security concerns are involved.
The administration has also relied on the continuing litigation involving The Associated Press.
Trump previously restricted AP access to locations including the Oval Office, Air Force One and other presidential spaces following a dispute over the news organization’s terminology for the Gulf of Mexico after the president ordered federal agencies to call it the Gulf of America.
A district judge ruled against the administration, but a divided federal appeals court later allowed the White House to continue excluding AP reporters from some restricted spaces while the case proceeded. The appellate litigation has distinguished access to limited presidential areas from broader press facilities and spaces such as the East Room.
Government lawyers invoked that distinction in their filing before Kelly.
“At the very least, the Government may control reporters’ access to restricted presidential areas, such as the Oval Office, even for viewpoint-discriminatory reasons,” the administration argued.
The Justice Department has also challenged the portion of existing precedent restricting the government’s ability to discriminate among reporters in broader White House press areas, indicating that it believes those protections should be reconsidered.
CNN, MS NOW and Politico argue that their situation goes substantially further than exclusion from individual events or highly restricted rooms because their reporters have been barred from White House grounds altogether.
The ban has also disrupted the traditional television press pool. CNN had been scheduled for pool duty shortly after the restrictions took effect, and other major television networks declined to replace it in solidarity with the barred organizations.
Kelly’s decision Wednesday not to immediately issue a temporary restraining order does not resolve the merits of the lawsuit.
The judge is still considering whether the outlets have demonstrated the legal requirements for emergency relief, including a likelihood of success on their constitutional claims and irreparable harm if their access remains suspended.
His questioning nevertheless focused heavily on whether the administration provided sufficient notice before acting.
For now, CNN, MS NOW and Politico remain barred from the White House as Kelly considers whether the restrictions can continue while the broader First Amendment and due-process case moves forward.
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