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President Donald Trump is asking federal courts to let him pick and choose which media outlets get White House access and launching a legal drive to overturn a decades-old precedent that provides broad protections for journalists who work in the West Wing.
In a court filing Tuesday night , the Justice Department defended Trump’s decision to ban POLITICO, CNN and MS NOW from the White House, describing it as a move rooted in the outlets’ publication of sensitive information.
“The President determined that Plaintiffs have failed to maintain minimum professional journalistic standards by publishing classified and national security information,” Trump’s brief says.
The filing, a response to an emergency lawsuit brought by the three news organizations demanding immediate restoration of their West Wing access, cited several stories by each outlet, including accounts about the state of the war with Iran, depleted U.S. munition stockpiles and details of a leak probe related to unflattering stories about FBI Director Kash Patel. The filing criticizes POLITICO for publishing a handout that the Secret Service provided to Senate Republicans to justify the construction of the president’s new White House ballroom.
The Justice Department brief also attached letters the administration purportedly sent to each outlet earlier Tuesday citing those stories as the basis for Trump’s decision to revoke their White House access, giving them until Friday to contest it.
However, the letters — which are unsigned and do not appear on official letterhead — do not claim that any of the cited stories contained classified information. In addition, some of the examples don’t appear to have any national security nexus at all. The letter addressed to POLITICO complains about a report that described bad “vibes” at the recent GOP midterm convention in Texas.
Justice Department lawyers grudgingly acknowledge that the after-the-fact letters can’t satisfy the requirements of a 49-year-old D.C. Circuit Court of Appeals precedent Sherrill v. Knight, w hich concluded that the government can’t selectively bar news outlets from White House press spaces based on the perceived viewpoint of their reporting.
The Justice Department is asking the courts to overturn the Sherrill decision — and with it, news outlets’ legal right to equal access to the White House press area. The department is urging the courts to instead expand a different D.C. Circuit ruling from last year that found the president likely had authority to selectively limit access to the most sensitive areas of the White House complex, such as the Oval Office.
POLITICO, CNN and MS NOW sued Monday, arguing that the revocation of their reporters’ credentials violates the First Amendment. They are also seeking a temporary restraining order requiring the White House to restore access while the case plays out.
U.S. District Judge Timothy Kelly, a Trump appointee, has set a hearing for 3:30 p.m. Wednesday.
A lawyer for the news outlets, Theodore Boutrous Jr., said the Justice Department’s brief was unimpressive.
“This is an exceptionally weak response. We look forward to the hearing,” he said.
Kelly presided over a similar legal fight in 2018 triggered by the Trump White House’s revocation of CNN White House correspondent Jim Acosta’s credentials following a dispute about his actions at a press conference. The judge issued a quick ruling in Acosta’s favor, ordering the White House to return his hard pass.
Kelly didn’t have the opportunity to delve into the case in detail, because it was dropped within days after officials said they would give up on stripping Acosta of his credentials.
Trump signaled Monday that he thinks Kelly will rule against him in the current fight and that his position may only be vindicated by an appeal.
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