CNN, MS NOW and Politico ask judge to stop Trump from reviving White House ban

By Tierney Sneed, CNN

(CNN) — News organizations targeted by President Donald Trump’s attempt to ban them from the White House asked a federal judge late Monday to extend his order temporarily restoring their access, describing the ban as an “unlawful assault on the most fundamental First Amendment freedoms.”

The new filing, submitted by attorneys for CNN, MS NOW and Politico, said that actions the administration has taken to “retaliate” against the news organizations, even after the judge ordered the White House to allow them inside, only underscore that the “motive is to punish and chill journalism they dislike.”

US District Judge Tim Kelly last week issued a temporary restraining order requiring that the White House reactivate press badges for journalists at the three outlets, after the badges had been turned off earlier this month, preventing the journalists’ from entering the White House grounds.

Kelly initially rejected White House claims that national security concerns motivated Trump’s move to ban the outlets. However, the judge – who was appointed by Trump during his first term – signaled he’d consider additional evidence explaining that supposed justification.

But the outlets argued even as the administration has tried to push the national security reasoning in court, Trump and other officials have said the ban is about punishing negative coverage.

“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 said.

The outlets also pointed to a Sunday press appearance by Attorney General Todd Blanche, in which he described the national security risk as being the result of “one-sided media coverage” from certain outlets.

“The real reason Defendants imposed the ban – expressed contemporaneously and repeatedly since then – is that the President dislikes Plaintiffs’ supposedly ‘negative’ reporting,” the outlets said.

Kelly’s order restored the outlets’ access to the White House for two weeks, and on Thursday, press badges that had been confiscated by the administration under the ban were returned and turned back on.

However, the administration refused to allow CNN to join Trump on Air Force One – during his trip to Tennessee on Saturday – as the TV pool member assigned to travel with him that day. (The White House pool is a smaller group of news organizations that cover, on a rotating basis, presidential events and movements that cannot accommodate the entire White House press corps.)

The new filing from the news organizations referenced the pool episode Saturday to argue that the “White House has persisted in unpredictably and inconsistently” implemented the ban.

“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,” the media companies said.

Kelly, in his TRO ruling, said that legal precedent made clear that outlets were entitled to advance notice that they could be banned and be given an opportunity to challenge the determination, making the White House’s failure to do so a likely violation of the Constitution’s due process clause. In addition to the due process claims, the new organizations are challenging the ban on First Amendment grounds.

The judge’s order expires on October 8, and the outlets are asking for a preliminary injunction, which would maintain their access while the lawsuit plays out in Washington DC’s federal court. A preliminary injunction would also set the stage for a Trump appeal to revive the press prohibitions.

The new organizations also encouraged Kelly to adopt a broader legal rationale for keeping Trump’s ban on hold, as they emphasized the alleged First Amendment violations in addition to the due process claims they have brought.

“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,” they wrote.

When Trump announced on September 18 that he was banning the news organizations, he said he was doing so because of “their constant ‘reporting’ FAKE NEWS!”

The White House has since pointed to stories published by the outlets about the Iran war, the East Wing ballroom construction and even the GOP’s midterm convention to claim that their coverage had “threatened national security and/or spread falsehoods.”

Letters from the White House highlighting those reports gave the outlets until 5 p.m. Friday to object to the policy, before Trump made a “final” decision to ban them. The Justice Department claimed the letters and the process they outlined were enough to overcome due process concerns — an argument Kelly rejected in his ruling last week that said the administration had failed to convince him this was an “extraordinary” circumstance.

The Trump administration has until Friday to respond to Monday’s filing, and the outlets will submit a final written brief by next Monday. Kelly said he’ll schedule a hearing and that he plans to rule “expeditiously.”

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