Judge orders Trump administration to allow CNN, MS NOW, and Politico to access White House while press ban lawsuit plays out

A logo on a booth for CNN is seen in the press area at the White House, Saturday, September 26. Rod Lamkey/AP Donald Trump Human rights Federal agencies Media See all topics Facebook Tweet Email Link Threads Link Copied! Follow The Trump administration must allow CNN, MS NOW, and Politico to access the White House while their lawsuit over the president’s press ban plays out, a federal judge ruled on Tuesday.

US District Judge Tim Kelly said that President Donald Trump’s press ban likely violated the First Amendment, expanding upon his previous legal rationale for ordering that the three outlets be allowed access to the White House.

He wrote that Trump’s own comments explaining the ban show a “likely causal link between Plaintiffs’ protected First Amendment speech and his revocation of their hard passes.”

Those comments helped the outlets prove that Trump had banned them for retaliatory reasons, in violation of the First Amendment, Kelly said.

“President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him,” the judge wrote.

Kelly’s latest order sets the stage for the Trump administration to appeal the case. His previous order that blocked the White House ban was set to expire Tuesday.

The judge’s new order rejected the Justice Department’s claims that national security concerns at least partially motivated Trump’s ban. He wrote that there was “no evidence in the record that President Trump made the decision to revoke Plaintiffs’ hard passes on national security grounds from the get-go, nor at any time has he directly stated that national security was the reason for his decision.”

Kelly, who was appointed to the bench by Trump in his first term, said that Trump’s comments led him to believe that the ban amounted to unconstitutional viewpoint discrimination.

Kelly, in an earlier phase of the case, had ordered the administration to reactivate the press badges used by the news organizations for due process reasons — meaning that the outlets were not given fair notice of the ground rules before their access was revoked.

His opinion Tuesday referenced letters the White House sent the outlets after their lawsuit was already filed, which ostensibly explained why Trump was banning them, while giving the outlets a deadline to respond. Kelly concluded those letters did not do enough to fix those issues — in part because they were sent after the ban was put into effect.

CNN has reached out to the White House and Justice Department for comment.

Ted Boutrous, the attorney for the media outlets, celebrated the ruling in a statement Tuesday, saying, “When the President issued his ‘ban on the free press,’ he blatantly and explicitly violated due process and the First Amendment. Since then, the President has repeatedly, candidly, and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn’t like and to try to force journalists to cover him in ways he prefers.”

“The harm this ban did to our clients, the First Amendment, and the public as a whole is profound,” Boutrous added.

Before getting into the meat of his opinion, Kelly said that his ruling shouldn’t be construed as leaving the government “powerless” to respond to reporting that unlawfully discloses classified information, as he expressed some sympathy for Trump’s concerns.

“[N]o one should interpret the Court’s decision to suggest that President Trump’s concerns about accuracy and fairness in the media’s reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed,” he wrote.

The judge went on to write that he took “seriously” the government’s interest in protecting classified information. But he could find “just about no evidence in the record to explain or justify the ‘ban’ from a national security perspective.”

He noted that the administration did not try to submit any information — even under seal or just for the court to view — that would have bolstered the Justice Department’s national security arguments.

“In the end, Defendants do not even bother to identify what specific information in any of these ‘reporting incidents’ was allegedly classified or sensitive,” Kelly wrote.

Trump has repeatedly defended the ban since he announced it on September 18. He has pointed to his perceptions that the outlets’ coverage was “negative” or “one-sided” in explaining why he wanted to block the journalists from accessing the White House.

However, in court filings, the Justice Department has claimed that there was also a national security rationale for the ban, citing stories by the outlets covering the Iran war, the East Wing ballroom construction and even the midterm GOP convention.

The news organizations have argued that the ban not only affected their ability to cover the president, but also had a chilling effect on other outlets.

This courtroom sketch shows the DC District Court hearing regarding the White House attempt to ban CNN, MS NOW and Politico, on Thursday. Dana Verkouteren Judge appears skeptical of Trump’s White House press ban and other hearing takeaways

At a hearing in the case last Thursday, Kelly signaled skepticism of the dueling rationales Trump and Justice Department lawyers had provided for why the president wanted to ban the media outlets from the White House.

Kelly remarked at the hearing that it was “unusual” to have a case where “the decision maker seems to have said … I am taking this action because ‘x’ and ‘y,’” and now the government is saying, “it’s ‘z.’”

Justice Department attorney Michael Velchik told the judge that it’s “within the discretion of the president” to remove reporters or news outlets from the White House.

Velchik said “CNN has been on notice for years” and that Trump has long been calling the outlet “fake news.”

“Trump doesn’t mind negative press stories if he deserves them,” Velchik added.

Boutrous emphasized the subjective nature of the ban and how Trump made the decision himself.

“We know what he decided. He said it over and over again,” Boutrous said. “He issued the ban himself.”

Boutrous added, “the only thing I can come up with” is that the president likely “woke up on the wrong side of the bed” and decided to issue the ban.

This story has been updated with additional details.