Judge Kelly Weighs Longer Block on Trump's CNN, MS NOW, Politico Ban as Restraining Order Expires Thursday

Since Kelly's Sept. 24 restraining order forced the White House to hand back the press passes, the fight has narrowed to what "access" actually means. That order expires today, Thursday, Oct. 8, and the court hears arguments this morning on whether to replace it with a preliminary injunction.

How the dispute got here

Trump announced the ban on Truth Social on Friday, Sept. 18. He wrote that the outlets "shouldn't be able to constantly write or report FICTION and LIES" and added that "Other Fake News Media Outlets" would follow.

The next morning, reporters from CNN, MS NOW and Politico were turned away at the White House and the Secret Service confiscated their passes. The three outlets sued on Sept. 21, claiming First Amendment and Fifth Amendment due process violations.

That same day, the five-network TV pool (Fox News, ABC, CBS, CNN and NBC) suspended its coverage of the president. Fox News D.C. bureau chief Bryan Boughton, the rotating pool chair, told members the move followed "the White House's position preventing CNN from fulfilling its assigned pool duties."

Kelly, a Trump appointee, ruled on Sept. 24 that the outlets were likely to succeed on their claim that their passes were pulled "without constitutionally adequate due process." He wrote: "This is a high bar, but Plaintiffs have met it."

He also found that "the record lacks factual support" for the administration's national security justification, at least for now. He described the articles the White House cited as "routine," some written months earlier. The reporters had no advance notice and no chance to respond.

In 2018, Kelly ordered a CNN journalist's White House access restored in a similar case.

Credentials back, access still limited

The journalists got their credentials back about 12 hours after the order. But the White House has not let CNN or Politico into the Oval Office or aboard Air Force One, the spaces filled by the rotating press pool.

On Monday, Oct. 5, Politico reporters scheduled for the out-of-town pool were not allowed to board the plane to Nebraska for Trump's midterm campaign stop.

Trump told Time magazine that letting the outlets onto the White House grounds, as the judge ordered, is different from letting them into the Oval Office or onto Air Force One.

The outlets say the order covers the credentials and the administration is hollowing it out in practice. Their filing says: "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 government's position

Justice Department lawyers argue that White House press access is a privilege, not a right, and that the president has the authority to decide who gets it. On Saturday, Oct. 3, the department asked Kelly to let the administration reinstate the ban.

The White House has also defended the move as necessary for national security. Kelly found no factual support for that claim in the record before him.

The outlets want a preliminary injunction that holds until the case is decided. They argue in their filing: "Every day, critically important news is breaking at the White House, and the ban will substantially interfere with Plaintiffs' ability to cover it." They add that the ban "inflicts an injury on all news media organizations," which "now risk a similar fate if they engage in fact-based, independent reporting the President deems insufficiently favorable."

The wider pattern

On Monday, Trump also went after the New York Times over its coverage of a weekend Ohio rally. He wrote that the Times and "many other Artificial Media Outlets, should be arrested for their dishonesty and disservice to our Country."

The Times says there were empty seats. Trump says there were none and thousands were turned away.

CBS News is also a party of interest in the corporate sense. CBS reports that it and CNN now share a parent, Skydance, after the Paramount and Warner Bros. Discovery merger finalized this week.

What a conservative should want here

The due process finding is the narrow, cleaner issue. The White House gave no warning, no hearing and no stated standard before pulling the passes, and Kelly found the cited articles were ordinary reporting.

A government that can cut off a reporter's access over coverage it dislikes can do the same to any outlet next, including ones friendly to a given president. Trump's own post named "Other Fake News Media Outlets" as next in line.

The administration's legal argument is that access has always been the president's to grant. That is a real question the court has not finally resolved.

What Kelly does today is the open question. If he issues a preliminary injunction, the pool-seat fight over Air Force One and the Oval Office is the likely next flashpoint. If he lets the order lapse, the three outlets could lose their passes again as soon as the White House acts.