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Judge Timothy Kelly is considering a request by the outlets — MS NOW, CNN and Politico — to block Trump from continuing to bar them from the White House.
The Justice Department, in a late Tuesday night filing, said Trump had barred the outlets on the grounds of national security concerns, and that the president had the legal right to do so. Trump did not cite that rationale when he announced the ban last Friday.
Kelly, at the beginning of the hearing, noted a 1977 ruling by the U.S. Court of Appeals for the District of Columbia Circuit had found that media outlets were entitled to due process in any decision affecting an outlet’s holding of so-called hard passes to the White House.
The three media outlets were not warned before Trump’s announcement that he was considering yanking their hard pass access.
“I think it is fair to say that process … wasn’t followed here, talking about predeprivation process,” Kelly said.
The judge noted that the Justice Department, in defending Trump’s ban, had argued that the 1977 ruling was wrong.
“There wasn’t a semblance of due process here,” said Theodore Boutros, the lawyer arguing for the media outlets at the hearing.
“This came completely out of the blue,” Boutros said.
The attorney said Trump’s public statements about the ban prove the outlets’ argument that they are being targeted with “viewpoint discrimination” for how they cover the president and his administration.
Boutros said that in Truth Social posts and in the Oval Office, Trump has said that he implemented the ban because “the coverage is too negative” and “purposely negative.”
“He keeps saying the same thing,” Boutros said. “He keeps proving our point. He’s literally our lead witness here.”
Kelly, who was appointed to U.S. District Court in Washington, D.C., by Trump during his first term, could rule at any time.
Kelly in 2018 ruled against the White House when he ordered that it restore the access pass of then-CNN correspondent Jim Acosta, who had it revoked after a contentious exchange with Trump.
Trump said in announcing the ban on Friday accused them of “cumulative” stories that contained so-called “fake news” about him and his administration.
The ban took effect on Saturday, with journalists from the outlets having their access passes taken away by the Secret Service when they arrived at the White House.
The three outlets jointly sued Trump on Monday.
This is breaking news. Check back for updates.
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