Judge appears skeptical of Trump’s White House press ban and other hearing takeaways

Over the course of an hour-plus hearing Thursday, US District Judge Timothy Kelly signaled skepticism about the Trump administration’s arguments for allowing President Donald Trump to ban CNN, MS NOW and Politico from the White House.

Kelly, who was appointed to the bench in Trump’s first term, did not announce his decision on the media outlet’s request for a long-term order that would maintain their access to the White House while their legal challenge plays out. But the judge repeatedly told Justice Department attorney defending the ban Thursday that he was bound by DC Circuit precedent – including the precedent that the administration was objecting to.

For now, the judge is extending for a few days his temporary restraining order that requires the White House to grant the journalists entry to its grounds while he works on his decision on whether to issue a preliminary injunction. He eventual preliminary injunction ruling – which will come Tuesday or sooner, he said – is likely to be appealed.

Kelly’s earlier ruling was focused on the due process claims brought by outlets, with the judge finding that the White House likely acted unconstitutionality when it banned the organizations without any advance notice.

Kelly returned to that issue again Thursday with government lawyer Michael Velchik. The case law around due process claims says that only in “hair on fire” situations can the government yank away a right it has granted a person without given them advanced notice, Kelly said, emphasizing a requirement to demonstrate an “urgent need” for taking immediate action.

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The situation in this case, however, seemed “more attenuated,” Kelly said.

The judge also grilled Velchik on the gap between the rationale that Trump has repeatedly given for banning in outlets — Trump in public remarks has pointed to their history of negative coverage of him — and the national security justification that the Justice Department is leaning on in court filings.

Kelly said it was “unusual” that “the decision maker seems to have said …I am taking this action because ‘x’ and ‘y’,” and now the government is saying, “it’s ‘z’.”

“It just seems like that fact pattern is a hard one to find” looking at other relevant cases, Kelly said, calling it an “uphill climb” for the Justice Department.

Velchik argued that it’s “within the discretion of the president” to remove reporters or news outlets from the White House.

“CNN has been on notice for years” as Trump has long called the outlet “fake news,” he added.

The president, Velchik added, is concerned about accuracy. “Trump doesn’t mind negative press stories if he deserves them.”

While Kelly seemed somewhat open to the idea that the White House could ban reporters for national security reasons in some contexts, he appeared skeptical of how the administration was trying to use that justification in this case.

Kelly told the attorney for the news organizations that he was “struck” by the outlets’ arguments in their briefing that the First Amendment protects the publication of classified information.

He asked if the government could take action similar to Trump’s press ban in a scenario where a reporter published classified information that is shown to be “very harmful” to the national security.

Media attorney Ted Boutrous said drawing a line there “would be a very dangerous road to go down” and that a ban for publishing classified information would still be content-based, in violation of the First Amendment.

Kelly was also focused on whether the First Amendment would permit a ban on a news organization for publishing false information. His first line of questioning for Boutrous was about disentangling the White House’s allegations that outlets’ “reporting was false” versus the allegations that the coverage was “not positive for the president.”

Kelly asked whether those two concepts should be viewed the same way under First Amendment law – noting it was “very hard to pull apart” the claims.

Boutrous said both allegations would still amount to viewpoint discrimination. He said that even falsity was a “debatable” issue, particularly if a president claimed that “what you’re saying is false because I don’t like it.”

Andrew Harnik/Getty Images/File

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Kelly pushed on the distinction harder. It may be hard to establish objective falsity if one was reporting that “the vibes were bad” at an event, Kelly noted – a reference to one of the stories the White House cited to justify the ban.

But the judge asked about a journalist who reported the sky was red instead of blue. Boutrous said that scenario was a “closer call” and he emphasized that the stories cited in this case were not anything like that. The attorney warned of “unbridled discrimination” if the administration was able to just declare that a story was false.

When the Justice Department weighed in on the question, its attorney argued that banning an outlet because it published false stories would not qualify as illegal viewpoint discrimination. Velchik described a very broad view for what could count as falsity, pointing to reporting that failed to verify quotes before publishing them or that spliced statements from interviews. He said that the use of “anonymous sources” was a constitutionally permissible reason to block a news organization from the White House.

The news organizations had several lawyers present at the plaintiffs’ table, while Velchik was the only government attorney sitting on the defendants’ side. When the DOJ attorney first took the lectern, Kelly remarked on the asymmetry and noted in his courtroom that it usually ran in the opposite direction, with government attorneys outnumbering the number of lawyers on the other side.

“I am sure you will do a great job, nonetheless,” Kelly told Velchik.

在周四长达一个多小时的听证会上，美国地区法官蒂莫西·凯利对特朗普政府允许唐纳德·特朗普总统禁止 CNN、MS NOW 和 Politico 进入白宫的理由表示怀疑。

凯利法官在特朗普第一任期内被任命，他没有宣布对该媒体提出的长期禁令请求的裁决。该禁令旨在确保该媒体在法律诉讼期间能够继续进入白宫。但周四，这位法官反复告诉司法部律师，他必须遵守哥伦比亚特区巡回上诉法院的判例——包括特朗普政府反对的那个判例。

目前，法官将临时限制令延长数日，该限制令要求白宫允许记者进入白宫区域，以便他决定是否发布初步禁令。他表示，最终的初步禁令裁决——将于周二或更早公布——很可能会被上诉。

凯利法官之前的裁决主要针对媒体提出的正当程序主张，他认为白宫在没有任何事先通知的情况下禁止这些组织活动，很可能违反了宪法。

周四，凯利再次与政府律师迈克尔·韦尔奇克讨论了这个问题。凯利表示，关于正当程序主张的判例法规定，只有在“危急关头”，政府才能在未事先通知的情况下剥夺个人已获得的权利。她强调，必须证明有必要立即采取行动。

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凯利说，但此案的情况似乎“较为缓和”。

法官还就特朗普反复给出的封禁媒体的理由（特朗普在公开讲话中指出这些媒体过去曾对他进行负面报道）与司法部在法庭文件中所依据的国家安全理由之间的差距质问了韦尔奇克。

凯利表示，决策者似乎曾说过“我采取这一行动是因为‘x’和‘y’”，而现在政府却说“是因为‘z’”，这“很不寻常”。

凯利表示，纵观其他相关案例，“似乎很难找到这样的事实模式”，并称这对司法部来说是一个“艰巨的任务”。

韦尔奇克认为，将记者或新闻媒体从白宫驱逐出去是“总统的自由裁量权”。

他还补充说，“CNN多年来一直受到警告”，因为特朗普长期以来一直称该媒体为“假新闻”。

韦尔奇克补充说，总统很在意报道的准确性。“如果特朗普罪有应得，他并不介意负面新闻报道。”

虽然凯利似乎对白宫在某些情况下可以出于国家安全原因禁止记者入境的想法持开放态度，但他对政府试图在此案中使用这一理由的做法表示怀疑。

凯利告诉新闻机构的律师，他对这些媒体在简报中提出的论点感到“震惊”，即第一修正案保护机密信息的发布。

他询问，如果记者发布了被证明对国家安全“非常有害”的机密信息，政府是否可以采取类似于特朗普的新闻禁令的行动。

媒体律师泰德·布特鲁斯表示，在那里划清界限“将是一条非常危险的道路”，而且禁止发布机密信息仍然是基于内容的，违反了第一修正案。

凯利还关注第一修正案是否允许禁止新闻机构发布虚假信息。他对布特鲁斯提出的第一个问题是，如何区分白宫对媒体“报道不实”的指控和“报道对总统不利”的指控。

凯利问道，根据第一修正案法律，这两个概念是否应该以相同的方式看待——并指出“很难将这两种说法分开”。

布特鲁斯表示，这两项指控都构成观点歧视。他还说，即使是谎言本身也是一个“值得商榷”的问题，尤其是在一位总统声称“你说的都是假的，因为我不喜欢”的情况下。

Andrew Harnik/Getty Images/文件

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凯利进一步强调了这种区别。他指出，如果有人报道某个活动“气氛不好”，那么很难确定客观上的虚假性——凯利指的是白宫用来证明禁令合理性的其中一个故事。

但法官问及一位记者报道天空是红色而不是蓝色的情况。布特鲁斯表示，这种情况“比较难判断”，并强调本案中引用的报道与此截然不同。这位律师警告说，如果政府可以随意宣布某个报道是虚假的，那将导致“肆无忌惮的歧视”。

司法部就此问题发表意见时，其律师辩称，因媒体发布虚假报道而禁止其进入白宫并不构成非法的观点歧视。韦尔奇克对何为虚假报道给出了非常宽泛的定义，他指出，有些报道在发布前未核实引语，或者断章取义地剪辑采访内容。他还表示，使用“匿名消息来源”是宪法允许的禁止新闻机构进入白宫的理由。

新闻机构派出了多名律师坐在原告方席位，而韦尔奇克是被告方唯一的政府律师。司法部律师首次走上讲台时，凯利指出双方人数不对等，并表示在他的法庭上，情况通常恰恰相反，政府律师人数远超对方律师。

“但我相信你一定会做得很好，”凯利对韦尔奇克说。