Judge extends press reprieve for CNN, MS Now, Politico through Tuesday

Lawyer cites Trump Time interview as confession of viewpoint discrimination

A federal judge in Washington extended on Thursday a temporary order keeping CNN, MS Now, and Politico reporters inside the White House, buying the three outlets more time while the court weighs whether to issue a longer preliminary injunction. District Court Judge Timothy Kelly, a Trump appointee, said he would extend his September 24 temporary restraining order through Tuesday and would probably decide by then whether to grant the preliminary injunction the media companies have requested.

At the hearing, attorney Theodore J. Boutrous — who has represented numerous media companies that have sued the Trump administration over access issues — pointed to Trump’s recent interview with Time magazine as direct evidence that the September ban was retaliation for the three outlets’ coverage. 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.” Trump made no mention of national security concerns in the interview.

“The case has gotten stronger for the plaintiffs thanks to President Trump,” Boutrous told Kelly. He described the Time remarks as “a confession of viewpoint discrimination and retaliation” and added: “It’s really just absolutely clear … President Trump, to give him credit — he’s not hiding it.”

Under binding circuit precedent, news organizations cannot be removed from the White House for editorial or viewpoint-based reasons.

The government’s lawyer, Michael Velchik, told Kelly that “the White House is a sacred place” and argued the administration’s action was prompted by the three news organizations’ failure to adhere to “basic standards of journalistic conduct.” Velchik also faulted the outlets for declining to engage with post-hoc letters the White House sent offering them a chance to rebut the alleged conduct issues. Boutrous dismissed the letter process as a “sham process.”

In his September 24 order granting the temporary restraining order, Kelly had found the White House violated constitutional due process requirements by failing to give the companies adequate notice of the standards they were accused of violating and an opportunity to contest the potential sanction before it was imposed. The judge’s questioning on Thursday indicated he had not changed his view on that point.

Kelly pressed Velchik on the notice question, telling him the government “still have a notice problem, it seems to [him], or at least a notice issue.” The judge pointed to a binding circuit decision involving a similar White House access dispute, calling those notice standards “probably the biggest hurdle” for the administration.

The judge did not signal clearly which way he was leaning on the preliminary injunction but accepted Boutrous’s framing at several points. “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,’” Kelly said. “It just seems like that fact pattern is a hard one around.”

The extension leaves the temporary restraining order in place until at least Tuesday, with a ruling on the preliminary injunction expected the same day.