Judge Signals Trump's White House Media Ban May Breach Due Process Precedents

A US federal judge indicated on Wednesday that President Donald Trump's decision to bar CNN, MS NOW and Politico from the White House did not appear to follow binding precedents from a federal appellate court, as he weighs whether to restore the outlets' access.

US District Judge Timothy Kelly, a Trump appointee, held the hearing in Washington on a request by the three news organisations for a temporary restraining order that would immediately reinstate their White House credentials while their legal challenge proceeds. The outlets sued on Monday.

Kelly pointed to two rulings by the US Court of Appeals for the District of Columbia Circuit holding that journalists are entitled to due process before their White House press passes can be revoked. He said the White House did not appear to have given the outlets a meaningful chance to contest the loss of access.

"The government said those cases ... were wrongly decided," Kelly said. "Maybe they were wrongly decided, maybe they weren't. But as a district court judge I have to apply them. I think it is fair to say the process the circuit laid out in those two cases wasn't followed here."

Lawyers for the outlets argued that the ban was imposed without the advance notice or opportunity to respond that the law requires. Attorney Theodore Boutrous told the court that removing the outlets amounted to an unprecedented and severe punishment, and described the move as clear viewpoint discrimination.

"They are using national security as this talisman — these magic words," Boutrous said, calling it a pretextual effort to justify a violation of due process.

The Justice Department, in a filing on the eve of the hearing, contended that White House access is a privilege rather than an entitlement and that the president has authority to suspend access for news organisations. It echoed Trump's position that the bans rest on national security concerns about the outlets' coverage.

The government said it sent letters to the outlets after the ban accusing them of endangering national security through reporting on US missile stockpiles, construction of Trump's White House ballroom and turnout at the Republican Party's recent midterm convention.

Trump announced the ban on Friday on his social media platform, saying the organisations should not be able to "constantly write or report FICTION and LIES" while covering the president. The outlets said in their lawsuit that the ban violates the First Amendment's protections for speech and a free press, as well as their due process rights.

In a show of solidarity, major US television networks suspended their pooled coverage of Trump's movements on Monday, disrupting a decades-old arrangement that gives the public televised access to the president's public appearances. With the pool absent, Trump's remarks were inaudible during the White House's live stream of a ribbon-cutting for a new helipad.

Free speech experts have said the ban rests on shaky legal ground, noting that courts have long held the government cannot condition press access on favourable coverage once it opens a space to the media. In a 2018 case raising similar issues, Kelly ordered the White House to restore the press pass of a CNN correspondent whose credential had been revoked, finding that the process was "shrouded in mystery."

Trump said in a social media post on Monday that he regretted appointing Kelly to the bench in 2017 and that he was bracing for a loss.

A coalition of press freedom groups and dozens of news organisations filed a legal brief on Wednesday backing the three outlets, arguing that stripping journalists of their rights because of perceived editorial viewpoint violates decades of Supreme Court jurisprudence and is impermissible in any forum, including the White House. The brief was signed by the Reporters Committee for Freedom of the Press, the Washington Post and Fox News, among others.