Key moments from hearing on White House ban of CNN, MS NOW and Politico

By Tierney Sneed, Hannah Rabinowitz, CNN

(CNN) — A federal judge is weighing whether to restore the ability of CNN, MS NOW and Politico to access the White House, after a 45-minute hearing Wednesday in a lawsuit challenging the ban against them announced by President Donald Trump late last week.

At the outset, Judge Timothy Kelly noted that the White House did not appear to give reporters appropriate due process, as laid out by relevant court precedent, before revoking their access. But he also asked questions to test the limits of the outlets’ arguments against the national security rationale the administration is embracing to defend the ban.

The hearing covered the key arguments from the news organizations, with a lawyer for the media companies telling the judge that Trump was attacking the “very essence of the First Amendment,” and stressing the lack of due process. An attorney for the Justice Department, meanwhile, leaned hard on the national security rationale the administration is now using to defend the ban and insisting that the president is the ultimate decisionmaker for who can access the White House.

The news outlets are asking Kelly to immediately restore their access while the case plays out.

Kelly promised a ruling “as soon as I can.”

Here are the key moments from the hearing:

Judge describes the precedent, noting he heard a CNN access case during Trump’s first term

Kelly, who was appointed to bench during the first Trump term, kicked off the hearing by nodding to an irony in him being assigned this case: He oversaw a case challenging Trump’s first major effort, in 2018, to boot a reporter from the White House.

In that case, concerning the revocation of the White House press badge held by then-CNN journalist Jim Acosta, Kelly issued a temporary order reviving Acosta’s access, relying on a 1977 precedent establishing that press pass holders were entitled to due process before their White House access was yanked.

“I was assigned to the Acosta case many years ago, and I was as surprised as everyone when I dug in to look at the law in Sherrill,” Kelly said, referring to the 1977 case.

He declined to say whether he thought that and related precedents were correct. But, he said, “certainly as a district judge I have to apply them, and I think it is fair to say that the processes that the court laid out in these cases … wasn’t played out here.”

Media attorney says White House is attempting a late effort at due process

Ted Boutrous, the attorney for the news organizations, pushed back on an idea put forward by the administration that letters from the White House sent to the three outlets Tuesday night about the ban were enough to overcome the due process claims the news organizations are making in the case.

The White House letters were “post hoc” and “pretextual,” Boutrous said, and didn’t meet the requirement, under precedent, that the government give clear standards and notice before shutting a journalist out of the White House. The letters described several stories by the reporters as posing national security risks. Boutrous called those articles “garden variety reporting.”

He noted among the multiple stories cited in the letter to CNN, only one had been written by a journalist with a hard pass – the badge that gives reporters regular access to the White House. The journalist wrote the story in question, about the plans to build a bunker under the East Wing ballroom construction, and had her badge renewed over the summer, several months after the story was published.

First Amendment rights

Boutrous also zeroed in on the national security arguments the White House is now pointing to. He argued that the rationale was cooked up after the fact, and that the reasoning violates constitutional protections for journalists.

“What the president is objecting to is the very essence of the First Amendment,” Boutrous said.

Kelly had some questions testing whether there was a scenario where a national security rationale would even be an appropriate reason for cutting off a reporter’s White House access.

His first question raised a hypothetical that a reporter was passing along classified information to a foreign enemy. In response, Boutrous stressed that the current circumstances are very different than that scenario. But he acknowledged that if the Secret Service – when vetting whether a hard pass applicant posed a physical security risk to the president – turned up that kind of concern, the White House could act on it.

Kelly then asked whether the content of a story published by a reporter could pose a national security risk justifying a ban from the White House. Boutrous stood firm against that kind of rationale.

“Once you go down that road, it is … blatant viewpoint discrimination,” Boutros said.

DOJ: Trump has the ultimate authority

The Trump administration said that the issue was straightforward: Trump has the right to decide who can access the White House.

The argument from Justice Department attorney Michael Velchik aimed to undercut allegations that the White House violated due process by banning reporters without advance warning.

Trump’s decision, Velchik said, followed the guidelines created by previous court rulings that say outlets must have the ability to appeal any suspension or revocation. Tuesday’s letters from White House to the outlets said that by this Friday afternoon, the journalists could lodge their objections to the ban and then a final determination would be made.

But the judge noted that this process was put into place only after the revocation was announced. And, Kelly said, the journalists claim they weren’t even made aware of any new requirements for having a press pass, nor were they warned they had violated those requirements.

Velchik also argued that the outlets whose access was revoked endangered national security with their reporting, which constituted enough of a reason to immediately restrict their access. Those concerns are of utmost importance now, he said, because Chinese President Xi Jinping is visiting Washington, DC, this week.

CNN’s Holmes Lybrand and Katelyn Polantz contributed to this report.

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