The Trump administration must allow CNN, MS NOW and Politico access to the White House while their trial over the president’s press ban proceeds, a federal judge ruled Tuesday.
U.S. District Judge Tim Kelly said President Donald Trump’s press ban likely violated the First Amendment, expanding on legal arguments he previously made to order that all three media outlets be allowed access to the White House.
He wrote that Trump’s own comments explaining the ban show a “likely causal connection between plaintiffs’ protected First Amendment speech and the revocation of their hard passes.”
Those comments helped the media prove that Trump banned them for reasons of retaliation, in violation of the First Amendment, Kelly said.
“President Trump likely banned the plaintiffs from the White House because he believes their reporting is generally inaccurate and biased against him,” the judge wrote.
Kelly’s latest order clears the way for the Trump administration to appeal the case. His previous order, which blocked the White House ban, was set to expire Tuesday.
The judge’s new order rejected the Justice Department’s assertions that national security concerns at least partly motivated Trump’s ban. He wrote that there was “no evidence in the record that President Trump made the decision to revoke Plaintiffs’ strict passes on national security grounds from the outset, nor did he directly state at any time that national security was the reason for his decision.”
Kelly, who was appointed to the bench by Trump during his first term, said Trump’s comments led him to believe the ban amounted to unconstitutional viewpoint discrimination.
Kelly, in an earlier phase of the case, had ordered the administration to reactivate press badges used by news organizations for due process reasons — meaning that media outlets were not informed of the ground rules before their access was revoked.
His opinion Tuesday referenced letters the White House sent to the media after their complaint was filed, which ostensibly explained why Trump was banning them, while giving the media a deadline to respond. Kelly concluded that these letters did not do enough to address these problems – in part because they were sent after the ban took effect.
CNN has reached out to the White House and the Justice Department for comment.
Ted Boutrous, the media lawyer, celebrated the decision in a statement Tuesday, saying, “When the President issued his ‘ban on the free press,’ he blatantly and explicitly violated due process and the First Amendment. Since then, the President has repeatedly, frankly and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn’t like and to try to force journalists to cover him the way he prefers.”
“The harm this ban has caused to our customers, the First Amendment and the public at large is profound,” Boutrous added.
Before getting into the meat of his opinion, Kelly said his decision should not be interpreted as leaving the government “powerless” to respond to reports illegally leaking classified information, as he expressed some sympathy for Trump’s concerns.
“(No one should interpret the Court’s decision to suggest that President Trump’s concerns about the accuracy and fairness of media reporting are unfounded, or that the government is impotent when its true purpose is to protect national security when classified information is unlawfully disclosed,” he wrote.
The judge added that he took the government’s interest in protecting classified information “seriously.” But it found “virtually no evidence in the record to explain or justify the ban from a national security perspective.”
He noted that the administration had not attempted to submit information — even under seal or simply for the court to view — that would have bolstered the Justice Department’s national security arguments.
“Ultimately, Defendants do not even bother to identify what specific information contained in any of these ‘reporting incidents’ was allegedly classified or sensitive,” Kelly wrote.
Trump has defended the ban repeatedly since he announced it on September 18. He highlighted his perception that media coverage was “negative” or “one-sided” to explain why he wanted to block journalists from the White House.
However, in court filings, the Justice Department claimed that the ban was also based on national security reasons, citing media reports covering the war in Iran, the construction of the East Wing Ballroom and even the GOP midterm convention.
News organizations argued that the ban not only affected their ability to cover the president, but also had a chilling effect on other media outlets.
At a hearing in the case last Thursday, Kelly expressed skepticism about the conflicting justifications Trump and Justice Department lawyers had offered for why the president wanted to ban media from the White House.
Kelly noted at the hearing that it was “unusual” to have a case where “the decision maker seems to have said…I’m doing this because ‘x’ and ‘y'” and now the government is saying, ‘it’s ‘z’.”
Justice Department lawyer Michael Velchik told the judge it was “at the president’s discretion” to remove journalists or news outlets from the White House.
Velchik said “CNN knew about it for years” and that Trump had long called the channel “fake news.”
“Trump doesn’t care about negative press reports if he deserves them,” Velchik added.
Bourous emphasized the subjective nature of the ban and how Trump made the decision himself.
“We know what he decided. He said it over and over again,” Boutrous said. “He issued the ban himself.”
Boutrous added, “the only thing I can think of” is that the president probably “woke up on the wrong side of the bed” and decided to issue the ban.
This story has been updated with additional details.
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