The badges were turned off first. The reasons came later, and the reasons kept changing. Earlier this month the White House deactivated the press credentials of journalists at CNN, MS NOW and Politico, and without a working badge there is no getting through the gates. On September 18, President Donald Trump announced the ban himself. He was doing it, he said, because of “their constant ‘reporting’ FAKE NEWS!”
Last week the badges came back on. The White House had not relented; a judge had ordered the restoration. US District Judge Tim Kelly, appointed by Trump during his first term, issued a temporary restraining order requiring the administration to reactivate the credentials, and the order restored the outlets’ access for two weeks. Kelly did not accept the White House’s claim that national security had motivated the ban, though he signaled he would consider further evidence of that justification.
On Thursday, the confiscated badges were returned, and switched back on.
On Saturday, the White House declined to let CNN travel on Air Force One as the assigned television pool member for Trump’s trip to Tennessee. The pool is the small, rotating group of organizations that covers presidential movements too confined for the full press corps. In their new filing, the outlets say the episode shows the White House “has persisted in unpredictably and inconsistently” implementing a ban it had just been ordered to suspend.
Late Monday, the three outlets asked Kelly to go further. Their brief requests a preliminary injunction before the restraining order expires on October 8, and describes the ban as an “unlawful assault on the most fundamental First Amendment freedoms.” Even after the judge ordered the badges restored, they say, the administration continued to “retaliate” — which in their reading shows the “motive is to punish and chill journalism they dislike.”
“President Trump has continued to justify the ban on the ground that he dislikes Plaintiffs’ coverage of him and his administration without even mentioning national security,” the organizations wrote. At a press appearance on Sunday, Attorney General Todd Blanche described the national security risk as flowing from “one-sided media coverage” by certain outlets. “The real reason Defendants imposed the ban – expressed contemporaneously and repeatedly since then – is that the President dislikes Plaintiffs’ supposedly ‘negative’ reporting.”
There had been, the Justice Department argued, a process. The White House sent letters flagging reporting by the three outlets about the Iran war, the East Wing ballroom construction and even the Republican midterm convention, asserting the coverage had “threatened national security and/or spread falsehoods.” The letters gave the outlets until 5 p.m. Friday to object before Trump made a “final” decision. The Justice Department said this answered the due-process problem; Kelly ruled it had not persuaded him the circumstances were “extraordinary.”
In the restraining-order ruling, Kelly held that precedent entitles outlets to advance notice of a ban and a chance to contest it, making the White House’s failure to provide either a likely violation of the due process clause. The outlets now want the injunction granted on broader First Amendment grounds, not only on process.
Because no amount of manufactured process could ever allow a ‘ban on the free press’ under the First Amendment, entering a preliminary injunction on First Amendment grounds prevents further ‘shenanigans,’ as Plaintiffs’ counsel warned at the hearing on the temporary restraining order.”
The schedule is set. The administration has until Friday to respond to Monday’s filing; the outlets will submit a final brief by next Monday; Kelly has said he will schedule a hearing and rule “expeditiously.” A preliminary injunction would keep the gates open while the lawsuit proceeds in Washington’s federal court — and would set the stage for a Trump appeal to revive the prohibitions.
“The White House’s words and actions leave little doubt that it will immediately reinstitute a complete ban of CNN, MS NOW, and POLITICO if allowed the opportunity.”