Federal judge is still weighing Trump’s ban of MS NOW, CNN and Politico from White House

A federal judge was still weighing on Wednesday whether President Donald Trump can arbitrarily ban journalists from covering the White House, delaying the question of restoring press access to three national news organizations

In a virtual hearing Wednesday afternoon, U.S. District Judge Timothy Kelly did not rule from the bench on restoring credentials for MS NOW, CNN and Politico, which were ejected from the White House grounds on Saturday. But he indicated he would issue his ruling soon and expressed some skepticism about whether the ban was constitutional.

Lawyers representing MS NOW, CNN and Politico argued that the ban was unconstitutional and inhibits lawful newsgathering.

Theodore Boutrous, a lawyer representing the news organizations, pointed to Trump’s several public statements about the ban — both on Truth Social and in the Oval Office — as evidence of a First Amendment violation and proof that the ban was retaliatory and viewpoint discrimination.

“He keeps proving our point,” Boutrous told the judge. “He’s literally our lead witness here.”

Trump “keeps proving our point. He’s literally our lead witness here.”

Theodore Boutrous, a lawyer representing the news organizations

A lawyer representing the Trump administration defended the ban, arguing that Trump has the power to regulate press access at the White House.

A lawyer for the government argued Trump’s decision to revoke press access for the three news organizations was lawful.

“Access to the White House is a privilege, not a right,” said Michael Velchik, the lawyer representing the government.

Velchik argued that the president’s numerous critical statements about other news organizations undercut the argument that there was retaliation or viewpoint discrimination.

“They can’t get a ‘get out of jail free card’ just because they can find a tweet that the president criticized them one time,” he argued.

The government also said the news organizations had received due process, pointing to letters sent to MS NOW, CNN and Politico on Tuesday with an apparent explanation for the ban.

“Your organization has exhibited behavior in violation of 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 White House Press Office wrote in a letter to MS NOW.

Kelly was skeptical there was due process in this case, asking how a letter the organizations received after the passes were revoked would meet the standard required for formal notice.

Boutrous also pushed back on the government’s argument.

“There’s been a series of faux due process efforts,” he said.

“They’re going to keep playing games and moving the ball and that’s not due process,” he added.

The government also repeated the national security argument. 

But Boutrous referenced a Supreme Court case, which held the government’s justifications for interfering with the First Amendment must be “genuine, not hypothesized or invented post hoc in response to litigation.”

“Suddenly the lightbulb went off and they all started talking about national security,” he said

Wednesday’s hearing came just two days after MS NOW, CNN and Politico jointly filed a lawsuit asking a federal judge to reverse the ban and restore both access and credentials to the affected reporters.

“This ban could not be a more direct assault on the First Amendment nor a more blatant violation of our most fundamental constitutional principles,” the lawsuit said.

The court battle marks a significant escalation in the standoff between Trump and the news media, which he repeatedly has accused of unfair coverage of his administration. Trump previously has tried to bar specific outlets from the Oval Office, and administration officials have sought to eject journalists from the Pentagon and have engaged in an unusual review of broadcast licenses.

Lawyers representing the three news organizations alleged that Trump’s ban violates not only the First Amendment but also the due process clause of the Fifth Amendment. They also said the ban inhibits affected journalists from effectively doing their jobs.

“The ban irreparably curtails the organizations’ speech — preventing them from being able to publish stories they otherwise would — each day it remains in effect,” the complaint alleged. “The ban also impermissibly chills the speech of other news organizations and journalists, who must now balance conducting their constitutionally protected and vitally important work of reporting on the White House against the risk that coverage the President ‘dislike[s]’ will condemn them to the same fate.”

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