The Justice Department has argued that Donald Trump can legally ban CNN, MS NOW and Politico from the White House because he determined they did not meet “minimum requirements of professionalism.”
Last month, a federal judge granted the three media outlets a temporary restraining order that forced the White House to reinstate dozens of firm passes to their reporters. The media is now asking the judge to extend that 14-day order for a longer duration via a preliminary injunction, claiming that Trump’s ban is a violation of their First and Fifth Amendment rights.
U.S. District Judge Timothy Kelly, a Trump appointee, said he was bound by precedent set in a 1977 D.C. Circuit opinion, Sherrill v. Knight, in which the justices ruled that “the protection afforded to the gathering of information under the First Amendment’s guarantee of freedom of the press requires that such access not be denied arbitrarily or for less than compelling reasons.”
In a court filing Friday, the DOJ asserted that Sherrill’s case would still allow the president to restrict the three media outlets’ access to the White House grounds because the White House has a “compelling interest.”
Justice Department lawyers asserted that the Sherrill decision does not prevent “the President from concluding that bona fide journalists would identify their sources instead of relying on anonymous sources, commit to ensuring factual accuracy, and provide the White House with an opportunity to comment, rather than ‘performing their duties in a manner that…interferes with the day-to-day operations of the White House.’ …At a bare minimum, the release of classified and sensitive national security information constitutes a significant violation of decorum.
The media’s legal team rejected that claim, writing in a filing earlier this week that Trump’s “statements also make clear that he implemented the ban to compel more favorable coverage from CNN, MS NOW and Politico, and to deter other journalists and news organizations from gathering information and reporting that the president might view as negative. And his administration continued to retaliate against the plaintiffs even after the temporary restraining order, emphasizing only that the reason for the accused is to punish and cold journalism that they do not like.
Even though access to the White House grounds was restored, the White House continued to bar CNN from covering televised missions, including trips with Trump on Air Force One.
The media lawyers, led by Theodore Boutrous Jr., also noted that Trump and other White House officials “overlooked the fact that the First Amendment protects reporting on matters affecting national security.”
Kelly set a hearing for Thursday on the media’s motion for a preliminary injunction.
In granting a TRO, Kelly concluded that the White House failed to provide due process to the media.
The DOJ pointed to letters sent to media outlets as proof that they received due process. But those letters were sent on September 22, four days after Trump’s ban began.
The judge also noted that some of the objectionable stories cited by the DOJ do not have to do with national security. Kelly wrote in his order that “even the rationales provided to Plaintiffs after this case was filed are ambiguous as to the true purpose of the revocations: While Defendants’ letters to Plaintiffs mention national security concerns, they purport to identify information that ‘threatens national security and/or spreads falsehoods,’ leaving open the possibility that all of the stories fall into the latter category, rather than the former.”
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