A Trump-appointed judge has rebuked the president over his controversial media ban, declaring that the administration did not follow due process when it revoked reporters’ access to the White House over the weekend.
Judge Timothy Kelly began an emergency hearing on Wednesday to lift the ban, arguing that the administration failed to give journalists from CNN, MS NOW and POLITICO proper notice that they would be stripped of their White House credentials, or a chance to challenge the move before taking away their access.
The hearing came as the Daily Beast, as part of the White House Correspondents Association, joined the Reporters Committee for Freedom of the Press and nearly 50 news organizations in filing an amicus brief urging the court to immediately reverse the administration’s ban.
“Before we get to any core First Amendment issues, there is a due process claim and a due process issue that seems to me the first stop in figuring out how to resolve the motion,” Judge Kelly told the court, adding that process “wasn’t played out here.”
Trump announced the ban on Friday, saying the three outlets had engaged in “constant” fake news and describing their coverage as “purposefully negative.”
Their reporters were turned away on Saturday morning, with their hard passes deactivated and confiscated.
The sequence of events appeared to be a problem for Kelly, who overturned a similar ban in 2018 when the White House suspended correspondent Jim Acosta’s credentials.
During the hearing, veteran First Amendment lawyer Ted Boutrous lashed out at the administration, describing its actions as “clear retaliation” and an “over-the-top” reaction to what he said was “garden-variety reporting.”
For example, one of the articles the president took issue with, Boutrous said, focused on the “bad vibes” at the recent Republican convention.
“They don’t like that—and that’s what they’re using to justify this ban,” he told the court.
“They also cite, I think, four articles from the CNN, only one of which was from someone with a hard pass: Betsy Klein, one of our plaintiffs here. And that article was in June.”
But Justice Department lawyer Michael Velchik said Boutrous’ arguments were “absurd” and reaffirmed the view that access to the White House “is a privilege, not a right.”
At a minimum, he added, the court should not restore reporters’ credentials until after Chinese President Xi Jinping completes his visit to Washington this week, claiming that national security was paramount.
Judge Kelly did not rule immediately but said he would do so “as soon as possible.”
But the White House ban has already blown up the system used to provide television coverage of the president during one of his most important weeks on the world stage.
For instance, CNN was scheduled to serve as the rotating television pool network during Trump’s trip to New York for the United Nations General Assembly this week.
Under the system, CNN, ABC, CBS, NBC and Fox News take turns physically covering the president and distribute the footage to other broadcasters. But after CNN was kicked out of the rotation, the other four networks refused to simply take its place.
TV crews also won’t follow the president when he greets Xi with a red-carpet arrival on Wednesday evening, leaving other outlets to cover the highly anticipated visit.
On Wednesday, the White House Correspondents’ Association also joined dozens of other organizations to file an amicus brief urging the court to immediately reverse the administration’s ban.
“The brief makes clear what the law has long established: the government cannot remove journalists from the White House because it dislikes their reporting. That is viewpoint discrimination, and a clear violation of the First Amendment,” said WHCA president and Fox News host Jacqui Heinrich.
