The Justice Department argued that Donald Trump can legally ban CNN, MS NOW and Politico from the White House because he determined that they didn’t meet the “minimum requirements of professionalism.”
Last month, a federal judge granted the three outlets a temporary restraining order that forced the White House to reinstate dozens of their reporters’ hard passes. The outlets are now asking the judge to extend that 14-day order for a longer term 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, has said that he is bound by the precedent set in In a 1977 D.C. Circuit opinion, Sherrill vs. Knight, in which the judges ruled that “the protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons.”
In a court filing on Friday, the DOJ claimed that the Sherrill case still would allow for the president to restrict the three outlets from accessing the White House grounds because the White House has a “compelling interest.”
The DOJ lawyers claimed that the Sherrill decision does not “prevent the President from concluding that bona fide journalists would identify sources instead of relying on anonymous sources, commit to factual accuracy, and provide the White House an opportunity to comment, rather than ‘perform their duties in a way that … interfere[s] with the White House’s daily operations.’ …At a bare minimum, it is a significant violation of decorum to publish classified and sensitive national security information.”
The news outlets’ legal team has rejected that assertion, writing in a filing earlier this week that Trump’s “statements also make clear he implemented the ban to coerce more favorable coverage from CNN, MS NOW, and Politico, and to deter other journalists and news organizations from newsgathering and reporting that the President might view as negative. And his administration has continued to retaliate against Plaintiffs even after the temporary restraining order, only underscoring that Defendants’ motive is to punish and chill journalism they dislike.”
Even as access to the White House grounds has been reinstated, the White House has continued to restrict CNN from coverage of TV pool assignments, including travel with Trump on Air Force One.
The outlets’ lawyers, led by Theodore Boutrous Jr., also noted that Trump and other White House officials “overlooked that the First Amendment protects reporting on matters affecting national security.”
Kelly has set a hearing for Thursday on the news outlets’ motion for a preliminary injunction.
In granting a TRO, Kelly concluded that the White House failed to provide due process to the news outlets.
The DOJ has pointed to letters sent to the outlets as evidence that they were given due process. But those letters were sent on Sept. 22, four days after Trump’s ban was started.
The judge also has 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 justifications provided to Plaintiffs after this case was filed are ambiguous about the true purpose of the revocations: while Defendants’ letters to Plaintiffs mention national security concerns, they purport to identify reporting that ‘threatened national security and/or spread falsehoods’ leaving open the possibility that all the stories fall into the later bucket, rather than the former.”
