DOJ Cites Banned Outlets Lack of 'Professional'

The Justice Department argued in a Friday court filing that President Trump can legally bar CNN, MS NOW and Politico from the White House because he determined they failed to meet the “minimum requirements of professionalism,” Deadline reported.

The filing asks U.S. District Judge Timothy Kelly to let the restrictions stand as the three outlets seek a preliminary injunction that would extend a temporary restraining order restoring their access. The outlets say the ban violates their First and Fifth Amendment rights. Kelly, a Trump appointee, has set a hearing on the motion for Thursday.

Justice Department lawyers contend that a 1977 D.C. Circuit decision, Sherrill v. Knight, still allows the president to restrict access when the White House has a “compelling interest.” In that case, the court held that “the protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons.”

The department said Sherrill does not “prevent the President from concluding that bona fide journalists would identify sources instead of relying on anonymous sources, commit to factual accuracy, and provide the White House an opportunity to comment, rather than ‘perform their duties in a way that … interfere[s] with the White House’s daily operations.’” It added: “At a bare minimum, it is a significant violation of decorum to publish classified and sensitive national security information.”

Lawyers for the outlets, led by Theodore Boutrous Jr., rejected that account. They wrote that Trump’s “statements also make clear he implemented the ban to coerce more favorable coverage from CNN, MS NOW, and Politico, and to deter other journalists and news organizations from newsgathering and reporting that the President might view as negative.” 

They said the administration “has continued to retaliate against Plaintiffs even after the temporary restraining order, only underscoring that Defendants’ motive is to punish and chill journalism they dislike,” and that the First Amendment protects reporting on national security.

Kelly granted the 14-day restraining order last month after finding the White House failed to give the outlets due process. The department points to letters sent to the organizations as evidence they were heard, but those letters went out on Sept. 22, four days after the ban began. In his order, Kelly also wrote that the later justifications were “ambiguous about the true purpose of the revocations”: the letters cite reporting that “threatened national security and/or spread falsehoods,” leaving open the possibility that the stories fall into the latter category rather than the former.