A federal judge ordered early Thursday that the White House immediately restore access for CNN, MS NOW and Politico, saying that President Donald Trump’s directive barring the three news outlets was most likely unconstitutional.
In granting a 14-day temporary restraining order reinstating the outlets’ access while their legal challenge proceeds, U.S. District Judge Timothy Kelly wrote that the plaintiffs are likely to succeed in their lawsuit against the Trump administration, at least on the grounds that their credentials were revoked last week without due process.
Trump, he wrote, did not dispute that the outlets “did not receive notice and an opportunity to be heard before their hard passes were revoked.”
The White House did not immediately respond to a request for overnight comment from NBC News.
Trump had posted on social media before a Wednesday hearing in the case that he expected the “totally disloyal” Kelly, whom he nominated to the bench during his first term, to rule against him — adding that “as usual, we’ll go for appeal.”
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Inside lawsuit challenging Trump’s White House outlet ban
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Trump announced the ban on the three news outlets in a post on Truth Social on Friday, saying it was “a result of their constant ‘reporting’ FAKE NEWS!”
“Media Outlets shouldn’t be able to constantly write or report FICTION and LIES when they’re covering the President of the United States, the Trump Administration, or the United States of America. Other Fake News Media Outlets to follow,” he said.
Thursday’s order rejected the White House’s argument that banning the outlets was motivated by national security concerns.
“Certainly, that is not what President Trump said when he announced that he was ‘banning’ Plaintiffs from the White House — instead, he focused on the alleged lack of truthfulness and negativity of Plaintiffs’ reporting,” Kelly wrote.
Speaking to reporters in the Oval Office a short time after the post, Trump referred to his directive as “the ban on the free press.”
“I don’t want them in my office. I don’t want them here,” he said.
He said the policy was not in response to a particular report, but because of “cumulative stories over the last few years.”
“They purposely write negative news. And they do that because they want to try and diminish the Republicans and a Republican administration,” he said. “If they could straighten themselves out, I’d love it,” he added.
The outlets said in their suit challenging the ban that Trump’s remarks show the policy was motivated by “retaliation” and “intended to cow” the outlets “into changing their reporting and threaten other journalists lest they suffer the same fate.”
The “Constitution does not allow a president or any other government official to deprive the press of their First Amendment rights and liberty and property interests with no notice or process based solely on that official’s dislike of the content of their reporting. The ban is patently unconstitutional and should be immediately restrained,” they argued.
The White House appeared to be trying to address those due process claims in letters to the news outlets on Tuesday, which told them they could “contest this initial decision” in written responses by Friday.
The letters accuse them of publishing “sensitive security information, and misinformation” which “undermines the President’s ability to safeguard the national security.”
They cited specific articles about munitions stockpiles impacted by the Iran war and sanctions against Russia, but also one about a request for $1 billion in funding for East Wing renovations that the president had said would be fully funded by donors, and another about negative “vibes” at the recent Republican midterm convention.
The letters also allege the organizations have “exhibited behavior in violation of the standards of professionalism and decorum expected of those given access to the White House Complex.”
Trump made a similar argument in a Truth Social post Monday.
“It is called the Oval Office, and it should be treated with Decorum, Respect, and Dignity, not defiled by Third Rate Clowns, who purposefully distort, twist, and degrade with everything they write or publish,” he wrote.
But Kelly pointed to a D.C. Circuit Court case, also involving Trump, that found that for a reporter’s hard pass to be revoked, the government must first publish standards of conduct that would lead to the revocation.
Nothing in the record demonstrates “formally articulated standards,” the judge wrote. And one standard the defendants “appear to offer” — reflected in the letters sent to the outlets — “is so vague it hardly does the trick.”
NBC News previously reported that Trump’s Friday announcement caught a number of high-level White House aides off guard. A senior White House official defended the move to NBC News earlier this week, saying, “Nobody close to the President was surprised at his action to hold the fake news accountable.”
The Reporters Committee for Freedom of the Press, the White House Correspondents’ Association and a group of 49 news and media organizations — including NBCUniversal Media LLC, the parent company of NBC News — filed a legal brief in the case Wednesday backing the three outlets.
The filing said the president’s stated reasons for the ban “are transparently viewpoint discriminatory” and “inconsistent with the First Amendment.”
“The ban at issue in this case does exactly what longstanding D.C. Circuit precedent” has said the government can’t do, the filing said — “prohibited three news organizations from access to the entirety of the White House and its grounds due to the content of their reporting.”
It also clashes, the filing said, “with bedrock Supreme Court precedent, which recognizes that ‘even though a person has no ‘right’ to a valuable governmental benefit,’ the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.’”
