Federal Judge Orders Temporary Restoration of CNN, MS NOW and Politico's White House Press Access

Reporters from the three outlets were quick to follow suit and attempt to access the Washington Complex by midday, only to be once again turned away that very morning before again being denied entry during an evening event.

Table of Contents

1. How It Began

2. From Ban to Lawsuit

3. The Ruling

4. Thursday's Compliance Dispute

5. What Happens Next

6. Conclusion

How It Began

Dating back to September 18, President Trump had taken to the social platform Truth Social announcing that he was placing a ban on the news outlets of CNN, MS NOW and Politico from the White House, while claiming that the move was focused on cutting their ability to report “Fiction and Lies”, while also emphasizing on the possibility of other outlets following suit if a pattern was noticed. The restriction was quickly implemented, with NN's Betsy Klein, MS NOW's Akayla Gardner and Politico's Cheyenne Haslett, all being denied entry by the Secret Service during their routine attempt to report for covering the White House announcements before being relieved of their hard passess, and consequentially their access to the area. Various press freedom groups including the likes of Freedom of the Press Foundation and the Knight First Amendment Institute were quick to condemn the move, calling it “unconstitutional” while the outlets at the centre of the ban demanded the ability to exercise their constitutional right to report without government interference.

From Ban to Lawsuit

Consequently, on Monday, September 21, CNN reporters were once again blocked from their turn on the television pool that would allow them to cover Trump's trip to the U.N. General Assembly in New York, a move that was quickly noticed within the press industry as other networks refused to send replacement crews if CNN were to be disallowed. Additionally, various outlets including ABC, CBS, CNN, Fox News and NBC were prompt to issue a joint statement reiterating that an administration should not be able to restrict the press because of its reportings while the three outlets of CNN, MS NOW, Politico along with three individual reporters began their pursuit of legal action with a formal suing of the Trump Administration at the U.S. District Court for the District of Columbia.

The outlets were represented by Ted Boutrous, who claimed that the unconstitutional ban upon the outlets violated the First Amendment and the Fifth Amendment's guarantee of due process. The legal lawsuit was confirmed by the Justice Department on Tuesday, September 22, where they confirmed receiving adequate notice. On Wednesday, September 23, District Judge Kelly held a hearing on the request for a temporary restraining order, where he received a brief filed by 49 supporting media organizations.

During the hearing, the Justice Department, represented by attorney Micheal Velchik argued that the outlet’s reporting had endangered national security while emphasizing on the idea of White House access being a privilege, instead of a lawful right. The argument was quickly shut down by the defendant Boutrous who countered by claiming that the “endangering national security claims” only surfaced after the ban received backlash while focusing on the irreparable damage that the outlets had witnessed during the period.

The Ruling

Notably, the ruling for this particular incident was heard and delivered by District Judge Kelly, a judge that was nominated to the bench by Trump in 2017 and has also been previously involved in an incident of this nature where he had ordered the White House to temporarily restore the press pass of then-CNN correspondent Jim Acosta in November 2018. District Judge Kelly’s ruling came early Thursday directing the White House to immediately return, reinstate, and restore press access for the three outlets, until further order of the court or until the order expires in 14 days.

While addressing the ruling, Judge Kelly wrote that the outlets were likely to achieve success in their Fifth Amendment procedural due process claim, a high standard that the plaintiffs had met while also demanding the government to better define standards and actions that could lead to revoking of passes. Furthermore, Judge Kelly also claimed that the administration’s argument of the outlets posing threat to national security lacked factual support and that the move was rather focused more towards untruthfulness instead of security concerns.

Thursday's Compliance Dispute

Despite the court’s directive ruling, the access for the three outlets wasn’t immediately restored and while the three outlets reporters attempted to enter the White House on Thursday, they were turned away while Secret Service Agents again confiscated passes from the journalists which led to a notice of noncompliance being filed followed by an emergency hearing. The Judge demanded an administration response by 12:30pm the same day, where White House press operations director Micah Stopperich presented the defense that the administration had begun reinstatement process at 7:25 am but hadn’t had the sufficient time to find, reactivate and provide the previous badges, while claiming that the process regularly spanned across two hours. The request for emergency hearing was then declared moot, with all three outlets and their reporters including CNN's Betsy Klein and MS NOW's Laura Barrón-López having been admitted along with Politico’s reporter into the grounds for their live reporting duties.

However, that very evening MS NOW’s Barrón-López was again refused entry prior to the arrival ceremony for Chinese President Xi Jinping ahead of a state dinner. The outlet was quick to report that they had requested credentials for the event but were ignored and left without a response while CNN correspondent was also turned away, with the CNN platform claiming that a specific type of journalist had been selectively permitted to cover the event. Upon seeking accountability by the staffers, the journalists were directed to speak to “Steven”, believed to be the communications director Steven Cheung. Additionally, the outlets were also quick to deny a claim laid by President Trump that had accused the networks of “refusing to cover” the arrival.

What Happens Next

Currently, District Judge Kelly’s restraining order is set to remain in place over the next 14 days while another briefing has been scheduled to assess whether a preliminary injunction is required. The judge has demanded the outlets to file their motions by September 28 while the Administration has until October 2nd to Respond with the outlets then expected to reply back by the 5th of October as he attempts to schedule hearings and provide a ruling in an expeditious manner. Even prior to the official issue of the ruling, President Trump had publicly claimed that the administration is prepared to appeal the ruling, but Judge Kelly’s restraining order is generally considered as unappealable. According to an UCLA Law professor, Eugene Volokh, the losing side on a preliminary junction is often able to appeal to the D.C Circuit and that the D.C Circuit would commonly disregard exclusion of reporters without due process or in typically media-focused areas, but White House being a government building could become the difference in the ruling’s outcome.

Conclusion

Judge Kelly’s temporary restraining order grants reporters from CNN, MS NOW and Politico the opportunity of a return to the White House, but the ban and the case are both far from being over. The upcoming two weeks of briefing could become the defining moments that decide whether Kelly’s restraining order is set to develop into a longer-term injunction or perhaps whether a ruling would be appealed by the administration. In reality, despite Judge Kelly’s ruling, the reporters from the three outlets struggled with uninterrupted access and delays on Thursday morning and evening programs, marking a contest over access despite a direct court order. And while the ruling develops, larger questions that outline the government's discretion over its own property as well as the due process and rights for an administration’s removal of a press credential are set to be debated in the coming weeks.