Judge Timothy Kelly on Tuesday indefinitely extended a block on the White House's ban of MS NOW, CNN and Politico, replacing an earlier temporary restraining order with a preliminary injunction that will remain in place while the three outlets' lawsuit proceeds.
Kelly, a Trump nominee to U.S. District Court in Washington, found that the three outlets were likely to succeed on multiple claims in their civil suit. These included a due process violation, since Trump revoked their hard passes without giving them a chance to respond, and two First Amendment claims alleging retaliation and viewpoint discrimination. Kelly cited binding appellate precedent from the U.S. Court of Appeals for the D.C. Circuit establishing a due process right for journalists whose White House passes are targeted for revocation.
In his written opinion, Kelly noted that Trump's own public statements suggested intent to alter the outlets' reporting. He rejected the Department of Justice's national security rationale as a "post-hoc justification" offered only after the outlets sued. "There is no evidence in the record that President Trump made the decision to revoke Plaintiffs' hard passes on national security grounds from the get-go, nor at any time has he directly stated that national security was the reason for his decision," Kelly wrote.
Trump announced the ban on September 18, saying the outlets "shouldn't be able to constantly write or report FICTION and LIES" when covering him. The ban took effect the next day when Secret Service officers confiscated the outlets' permanent passes. The outlets sued on September 21. Kelly issued a temporary restraining order two days later, which restored access on September 24.
The preliminary injunction does not compel the White House to restore access to the Oval Office or Air Force One. Trump said last month he would appeal any decision blocking his ban. CNBC requested comment from the White House and DOJ but did not report receiving responses.
Theodore Boutros Jr., attorney for the outlets, stated that Trump had "repeatedly, candidly, and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn't like."