A Judge Is Still Blocking the White House From Shutting Out CNN, Politico and MS NOW

On Thursday, Oct. 8, U.S. District Judge Timothy Kelly extended the temporary restraining order that keeps CNN, MS NOW and Politico inside the White House press corps. He told the parties to expect a ruling on a longer-term injunction "possibly earlier, but at a minimum by Tuesday," according to reporting on the hearing. That puts the next decision around Oct. 13.

What the court has actually done

The three outlets sued the administration on Sept. 21, alleging that the White House ban was retaliation for their reporting, in violation of the First Amendment, and that it denied them due process. On Sept. 24, Kelly, a Trump appointee on the federal bench in Washington, issued a 14-day temporary restraining order directing the administration to restore the outlets' access. According to the reporting, he found the outlets likely to show they were cut off without due process, and he was skeptical of the national security rationale the government offered.

As that order was set to lapse Thursday evening, Kelly said at a hearing that he would extend it by "two business days" while he weighs the outlets' request for a preliminary injunction. TheWrap reported that the outlets keep their press credentials in the meantime.

It is worth being precise about what this is. A temporary restraining order is a short-term holding action meant to preserve the status quo. It is not a final judgment on the merits, and any ruling Kelly issues next week can be appealed.

The government's argument

Justice Department lawyers defended the ban on national security grounds. According to the reporting, they pointed to coverage by the three organizations involving the Iran war and White House construction as raising security concerns. They also argued the outlets had been offered a chance to challenge their exclusion.

The outlets' lawyers countered that this process was a sham and that the president had already decided to punish them over unfavorable coverage. Kelly appeared to share some of that skepticism. He noted that it was "unusual" that the decision maker had announced his reasons in public, and that Trump had initially announced the ban by criticizing what he described as false and negative coverage rather than by citing national security.

That detail matters legally. Government officials generally get wide latitude on security, but they do not get to hand out access to the people's press room based on whether coverage is flattering. The First Amendment problem the outlets describe, viewpoint-based punishment, is the kind courts take seriously regardless of which party holds the White House. Conservatives who cheer a ban on outlets they dislike should ask how they would feel when a future administration of the other party uses the same tool against the outlets they trust.

Compliance questions

The record on compliance is murky. Reports conflict on how the White House responded to the September order: one outlet reported the White House refused to restore access despite the order, while another said Secret Service agents confiscated the three outlets' credentials on the morning of Sept. 24 before they were let in. The White House later removed CNN from its scheduled pool assignment for an Oct. 1 trip to Texas and Oklahoma. And CNN said that, despite the order, it was barred from traveling with the president on Air Force One for a weekend trip to Tennessee.

One report notes that the judge's order was limited to access on White House property and did not specifically address participation in the television pool during presidential travel or access to Air Force One. That gap is where this dispute may now move. A president has real discretion over who flies with him, and a court may be reluctant to tell him otherwise. Whether that discretion reaches the pool on the grounds of the White House is the question Kelly's next ruling may begin to answer.

The right-of-center case for restraint

We have little patience for much of the legacy press. Plenty of Americans believe these outlets have earned the distrust they get. But the remedy for biased coverage is competition, rebuttal and access for friendlier outlets, not a government list of approved reporters. The Constitution does not make the president the editor of the White House press room.

The administration has legitimate security interests, and it should be free to present evidence of them to the court. If it has it, it should show it. So far, as reported, the judge has not been persuaded that the stated rationale explains the ban, and the president's own announcement cited coverage, not security.

What to watch

Expect a ruling by Tuesday. If Kelly grants the injunction, expect an appeal and a fight over whether it reaches the travel pool. Either way, this is one round in a longer case.