Judge appears skeptical of Trump’s White House press ban and other hearing takeaways

By Tierney Sneed and Jeremy Herb, CNN

(CNN) — Over the course of an hour-plus hearing Thursday, US District Judge Timothy Kelly signaled skepticism about the Trump administration’s arguments for allowing President Donald Trump to ban CNN, MS NOW and Politico from the White House.

Kelly, who was appointed to the bench in Trump’s first term, did not announce his decision on the media outlet’s request for a long-term order that would maintain their access to the White House while their legal challenge plays out. But the judge repeatedly told Justice Department attorney defending the ban Thursday that he was bound by DC Circuit precedent – including the precedent that the administration was objecting to.

For now, the judge is extending for a few days his temporary restraining order that requires the White House to grant the journalists entry to its grounds while he works on his decision on whether to issue a preliminary injunction. He eventual preliminary injunction ruling – which will come Tuesday or sooner, he said – is likely to be appealed.

Due process concerns

Kelly’s earlier ruling was focused on the due process claims brought by outlets, with the judge finding that the White House likely acted unconstitutionally when it banned the organizations without any advance notice.

Kelly returned to that issue again Thursday with government lawyer Michael Velchik. The case law around due process claims says that only in “hair on fire” situations can the government yank away a right it has granted a person without given them advanced notice, Kelly said, emphasizing a requirement to demonstrate an “urgent need” for taking immediate action.

The situation in this case, however, seemed “more attenuated,” Kelly said.

The judge also grilled Velchik on the gap between the rationale that Trump has repeatedly given for banning in outlets — Trump in public remarks has pointed to their history of negative coverage of him — and the national security justification that the Justice Department is leaning on in court filings.

Kelly said it was “unusual” that “the decision maker seems to have said …I am taking this action because ‘x’ and ‘y’,” and now the government is saying, “it’s ‘z’.”

“It just seems like that fact pattern is a hard one to find” looking at other relevant cases, Kelly said, calling it an “uphill climb” for the Justice Department.

Velchik argued that it’s “within the discretion of the president” to remove reporters or news outlets from the White House.

“CNN has been on notice for years” as Trump has long called the outlet “fake news,” he added.

The president, Velchik added, is concerned about accuracy. “Trump doesn’t mind negative press stories if he deserves them.”

National security claims

While Kelly seemed somewhat open to the idea that the White House could ban reporters for national security reasons in some contexts, he appeared skeptical of how the administration was trying to use that justification in this case.

Kelly told the attorney for the news organizations that he was “struck” by the outlets’ arguments in their briefing that the First Amendment protects the publication of classified information.

He asked if the government could take action similar to Trump’s press ban in a scenario where a reporter published classified information that is shown to be “very harmful” to the national security.

Media attorney Ted Boutrous said drawing a line there “would be a very dangerous road to go down” and that a ban for publishing classified information would still be content-based, in violation of the First Amendment.

Banning an outlet for ‘false’ reporting

Kelly was also focused on whether the First Amendment would permit a ban on a news organization for publishing false information. His first line of questioning for Boutrous was about disentangling the White House’s allegations that outlets’ “reporting was false” versus the allegations that the coverage was “not positive for the president.”

Kelly asked whether those two concepts should be viewed the same way under First Amendment law – noting it was “very hard to pull apart” the claims.

Boutrous said both allegations would still amount to viewpoint discrimination. He said that even falsity was a “debatable” issue, particularly if a president claimed that “what you’re saying is false because I don’t like it.”

Kelly pushed on the distinction harder. It may be hard to establish objective falsity if one was reporting that “the vibes were bad” at an event, Kelly noted – a reference to one of the stories the White House cited to justify the ban.

But the judge asked about a journalist who reported the sky was red instead of blue. Boutrous said that scenario was a “closer call” and he emphasized that the stories cited in this case were not anything like that. The attorney warned of “unbridled discrimination” if the administration was able to just declare that a story was false.

When the Justice Department weighed in on the question, its attorney argued that banning an outlet because it published false stories would not qualify as illegal viewpoint discrimination. Velchik described a very broad view for what could count as falsity, pointing to reporting that failed to verify quotes before publishing them or that spliced statements from interviews. He said that the use of “anonymous sources” was a constitutionally permissible reason to block a news organization from the White House.

The news organizations had several lawyers present at the plaintiffs’ table, while Velchik was the only government attorney sitting on the defendants’ side. When the DOJ attorney first took the lectern, Kelly remarked on the asymmetry and noted in his courtroom that it usually ran in the opposite direction, with government attorneys outnumbering the number of lawyers on the other side.

“I am sure you will do a great job, nonetheless,” Kelly told Velchik.

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