A lawyer representing CNN, MS Now and Politico told a federal judge on Thursday that Donald Trump’s own comments have become the strongest evidence for the media companies challenging their exclusion from the White House.
Theodore J Boutrous, appearing before district court judge Timothy Kelly, said the president made clear in a recent Time magazine interview that he barred the three news organisations because of their critical coverage of him. Under binding court precedent, news organisations cannot be removed from the White House for editorial or viewpoint-based reasons.
The media coalition was in court seeking an extension of the temporary restraining order issued on 24 September, which required the White House to lift the ban for 14 days. That reprieve had been due to expire on Thursday, but Kelly, a Trump appointee, said he would extend it until Tuesday and would likely rule on a motion for a preliminary injunction by that day.
The extension means the White House must continue to allow journalists from CNN, MS Now and Politico access to the building until at least Tuesday.
Asked by Time for the “impetus” behind 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.”
Boutrous noted that Trump made no mention of national security concerns, which government lawyers have cited as a primary rationale for the ban. He told the judge the president’s remarks amounted to “a confession of viewpoint discrimination and retaliation”.
“The case has gotten stronger for the plaintiffs thanks to President Trump,” Boutrous said. “It’s really just absolutely clear … President Trump, to give him credit – he’s not hiding it.”
Kelly accepted Boutrous’s argument while questioning the White House’s sole lawyer, 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 a precipitating factor in the decision, which he said was consistent with Trump’s criticisms of how the three outlets operate.
He also faulted the media companies for not responding to post-hoc letters that offered them a chance to rebut the charges against them, a process Boutrous later described as a “sham process”.
In granting the temporary restraining order, Kelly ruled that the White House had violated constitutional due-process requirements by failing to give the companies adequate notice of the standards for acceptable conduct and no chance to contest the potential sanction in advance.
Nothing from Thursday’s hearing indicated the judge had changed his position on that standard. He told the government’s lawyer they “still have a notice problem, it seems to [him], or at least a notice issue”, and said the standards for adequate advance notice set out in a binding circuit case on a similar White House access dispute “are probably the biggest hurdle you have”.
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