Donald Trump continues to be the strongest witness for the media companies arguing that they were unfairly barred from the White House at his direction, a lawyer representing CNN, MS Now and Politico told a federal judge on Thursday afternoon.
The media coalition was in court asking the judge to extend the temporary restraining order (TRO) he issued on 24 September requiring the White House to lift the ban for 14 days. That temporary reprieve was scheduled to expire on Thursday, but district court judge Timothy Kelly, a Trump appointee, said he would extend it until Tuesday and that he would probably rule on a motion for a preliminary injunction by that day. That means the White House will be forced to allow journalists from CNN, MS Now and Politico to continue accessing the building until at least Tuesday.
Theodore J Boutrous, who has represented numerous media companies that have sued the Trump administration over access issues, said the president made abundantly clear in a recent interview with Time magazine that he chose to bar the three news organizations because of their critical coverage of him. (Under binding court precedent, news organizations cannot be removed from the White House for editorial or viewpoint-based reasons.)
Asked by Time for the “impetus” for the ban, Trump replied: “It’s just bad story after bad story, and when I say bad story, I can handle bad stories. I’ve got a lot of bad stories. Most of them are fake, and it’s not only CNN, and it’s not only MSDNC [sic]. It’s a lot of other people.” He made no mention of national security concerns, one of the primary reasons that has been given by government lawyers as a rationale for the ban.
“The case has gotten stronger for the plaintiffs thanks to President Trump,” Boutrous told the judge, citing what he said was “a confession of viewpoint discrimination and retaliation”. He added: “It’s really just absolutely clear … President Trump, to give him credit – he’s not hiding it.”
While the judge didn’t give a strong indication of which direction he was leaning, he accepted Boutrous’s argument when questioning the lone lawyer representing the White House, Michael Velchik.
“The decision-maker seems to have said I’m taking this action because of X and Y, and the government is saying: ‘No, it’s Z,’” the judge said. “It just seems like that fact pattern is a hard one around.”
Velchik, who began his argument by saying “the White House is a sacred place,” said a failure to adhere to basic standards of journalistic conduct was also one of the precipitating factors in the decision, something he said was in line with Trump’s comments criticizing the way that these three specific news organizations operate.
He also faulted the media companies for not responding to post-hoc letters giving the plaintiffs a chance to rebut the charges against them, something that Boutrous later described as a “sham process”.
In his ruling granting a TRO for the media plaintiffs, Kelly said the White House had violated constitutional requirements for due process by not giving the companies adequate notice for what the standards for acceptable conduct are and not giving them a chance to protest against the potential sanction in advance.
Nothing from Thursday’s hearing seemed to indicate that the judge had changed his thinking on that important standard, suggesting he is likely to adhere to his earlier decision-making and extend the lifting of the ban.
The judge told the government’s lawyer that they “still have a notice problem, it seems to [him], or at least a notice issue”. Kelly said the standards for adequate advance notice laid out in a binding circuit case involving a similar White House access issue “are probably the biggest hurdle you have”.
