Lawyers representing CNN, MS Now and Politico told a judge on Thursday morning that the White House has already “repeatedly violated” his overnight order requiring the Trump administration to return the press badges of journalists from the three news organizations.
US district judge Timothy Kelly, who appeared skeptical of arguments from lawyers representing the White House during a hearing on Wednesday, issued an early morning order forcing the administration to return access for a 14-day period.
But journalists from the three affected networks reported being barred from the building, with some having their badges taken for the first time.
“This morning journalists from each of CNN, MS Now, and Politico attempted to enter the White House and were turned away, and Secret Service agents confiscated the hard pass of journalists whose hard passes had not previously been confiscated,” lawyers for the three news organizations wrote in a brief requesting a video or telephone conference “as soon as possible this morning”.
Lawyers for the news organization said the White House has not responded to their inquiries, and a Guardian email to the press office seeking comment was not returned.
Kelly gave the administration until 12.30pm to respond to the outlets’ filing.
The badges were revoked on Saturday, after the president abruptly ordered the three outlets to be banned over “their constant ‘reporting’ FAKE NEWS”. The outlets swiftly sued over the move, which sparked widespread criticism from other news organizations and press freedom advocates.
In a legal filing earlier this week, Department of Justice lawyers argued that the ban was necessary for national security reasons, and listed examples of articles that relied on non-public information.
But Kelly was unswayed, and argued in his ruling that the way in the which the White House banned the organizations had likely violated due process protections for journalists – and well-established legal precedent set in two press access cases by the United States Court of Appeals for the District of Columbia.
“Plaintiffs are also likely to succeed in showing that their hard passes were revoked without constitutionally adequate due process,” he wrote. “The ‘general rule’ is that ‘individuals must receive notice and an opportunity to be heard before the Government deprives them” of a constitutionally protected interest.’”
The judge said that, based on case law, before a press pass can be revoked, the White House “must promulgate rules or standards governing the conduct that would lead to such revocation. And the reporter must ‘receive fair notice not only of the conduct that would subject him to punishment, but also of the magnitude of the sanction that the White House might impose.”
The three news organizations were not given advance notice that they were in violation of any set of standards and only received formal notice – in letters sent to each news organization on Tuesday – that they “exhibited behavior in violation of the standards of professionalism and decorum expected of those given access to the White House Complex, including by trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information”.
Michael Kenneth Velchik, a justice department attorney representing the Trump White House, argued that such a process had been laid out in the letters, which informed each news organization that they had until 5pm on Friday to contest the ban. (The letters said that if the organizations did not submit such a challenge, it would become final.)
But the judge said the standard mentioned in the letters was “so vague it hardly does the trick”, and concluded that even the defendants “do not dispute that Plaintiffs did not receive notice and an opportunity to be heard before their hard passes were revoked.”
The judge also wrote that he was “skeptical … that Defendants’ interest in safeguarding national security is the actual motivation for, or is even advanced by, the revocation of Plaintiffs’ hard passes”. He cited comments from Trump about how the ban was for content-based reasons.
A hearing for a preliminary injunction will be expedited to be held during the 14-day period in which the passes are returned, the judge said.
Theodore J Boutrous Jr, an attorney for CNN, MS Now and Politico, praised the judge’s determination. “This is a strong ruling vindicating freedom of the press, due process and the rule of law,” he said in a statement. “We greatly appreciate the court’s swift action.”
Politico’s Akayla Gardner, one of the White House correspondents who was originally barred on Saturday, said in a television appearance that she had reached out to administration officials inquiring about how she can get her badge returned. “We haven’t yet heard back,” she said.
If the ban continues, the plaintiffs in the case are likely to motion for the judge’s order to be enforced.
Seemingly anticipating a loss, Trump already said in a post on Truth Social earlier this week that the White House would appeal any adverse ruling.
