CNN, MS NOW, and Politico reporters were allowed back into the White House Thursday after a federal judge ordered President Donald Trump to immediately restore their press access.
The re-entry came after a chaotic morning, during which the three outlets filed an emergency request for a hearing, accusing the Trump Administration of having “repeatedly violated” the court order and refusing several reporters access to the White House grounds. "This morning, journalists from each of CNN, MS NOW, and Politico attempted to enter the White House and were turned away, and Secret Service agents confiscated the hard pass of journalists whose hard passes had not previously been confiscated," the outlets said in the court document.
Judge Timothy Kelly had given the Trump Administration until 12:30 p.m. ET to respond to the outlets' filing.
In a court filing of its own, the White House said it "began the process" of reinstating press badges shortly at 7:25 a.m. ET and laid out a timeline of what followed. TIME has reached out to the White House for comment.
Early Thursday, in a District of Columbia court, Judge Kelly issued a temporary restraining order of 14 days against the ban, saying it “likely violated” the media outlets’ “constitutional due process rights.” He ordered that journalists from the banned media outlets should have their White House access reinstated “until further order of the court or the expiration of this temporary restraining order.”
In a statement to TIME, Ted Boutrous, the lawyer representing the news outlets, said “this is a strong ruling vindicating freedom of the press, due process and the rule of law. We greatly appreciate the court’s swift action.”
The order came in response to a lawsuit filed against the Trump Administration by CNN, MS NOW, and Politico on Monday, in which the outlets argued the ban was a “direct assault” on the First Amendment and violated their Fifth Amendment due process rights.
Outlining his ruling, Kelly said the outlets had “shown a likelihood of success, at least on their Fifth Amendment procedural due process claim.” The Fifth Amendment protects Americans from being “deprived of life, liberty, or property, without due process of law.” Kelly determined that the outlets were “likely to succeed in showing that their hard passes were revoked without constitutionally adequate due process.”
The judge also rejected the Trump Administration's assertion that the media ban was motivated by “national security” concerns. “Certainly, that is not what President Trump said when he announced that he was ‘banning’ plaintiffs from the WhiteHouse—instead, he focused on the alleged lack of truthfulness and negativity of plaintiffs’ reporting,” Kelly wrote, referencing Trump’s “fake news” reasoning.
The Justice Department, in a legal filing on Tuesday, said the outlets had “received adequate notice” of the ban (a point contested by Kelly) and insisted “the President’s actions are lawful under the First Amendment.”
Ahead of Thursday’s order, Trump dismissed the legal challenge over the ban and indicated he regretted appointing Judge Kelly in 2017.
Vowing to fight any legal block on his ban, Trump insisted: “Almost without question and, as usual, we’ll go for appeal, because fake news people and publications that only write negatively, and who violate our national security by writing false and defamatory stories with unknown ‘sources,’ shouldn’t be allowed access to the [Oval Office].”
However, in the court filing, Kelly stated that “temporary restraining orders are generally unappealable.”
Instead, during the 14-day period, the court “will set a schedule for expedited briefing on a motion for a preliminary injunction,” allowing Trump and the media outlets to submit further evidence for Kelly to consider.
“Either the preliminary injunction will be issued or denied,” says Eugene Volokh, a law professor at UCLA who specializes in the First Amendment. “The temporary restraining order would then lapse, and whichever side loses can then appeal to the D.C. Circuit.”
Instead of an appeal, Trump could file for emergency relief from the D.C. court, similar to how CNN, MS NOW, and Politico did Thursday, according to experts.
But “emergency relief is usually harder to get than a resolution through appeal,” says Volokh.
Trump has a turbulent history with the media. In 2018, he revoked the White House press credentials of Jim Acosta, who was then a CNN correspondent, after a tense exchange during a news conference.
CNN challenged the decision in court and it was Judge Kelly who ordered the White House to reinstate the reporter’s press pass.
Volokh says that legal precedent in the D.C. Circuit, used in both the ongoing case and that of Acosta, has “already been set” for areas of the White House usually open to the media, including the press briefing room.
“The government can't exclude reporters based on viewpoint, and cannot take away a press pass without due process, without some sort of hearing opportunity to be heard, an explanation of what it is that they supposedly did wrong, what rules they violated,” he says.
In light of this, an appeal from the Trump Administration after a preliminary injunction would likely be rejected in the D.C. Circuit, he argues. However, the President may find a better chance in the Supreme Court.
“Generally speaking, the First Amendment does not secure a right of access to government office buildings,” says Volokh, once again noting the exception of areas usually granted access for press. "The same position could be taken by the Supreme Court, and [it] might say: 'Look, the government can pick and choose whom to allow on its property,'" he says.
There has been an outpouring of solidarity among other media outlets in light of the ban.
CNN, one of five U.S. news outlets in the White House press pool that rotates responsibility for pooled live video coverage, was scheduled to cover Trump's trip to the U.N. General Assembly in New York on Monday. When they were restricted from doing so, other major television networks declined to replace CNN’s pool crew.
In a rare joint statement, ABC, CBS, CNN, Fox News, and NBC said: “The public has a vital interest in receiving accurate, independent information about its government. No Administration should restrict a news organization because it objects to its reporting.”
In a further show of support, some media publications—including the New York Times and Washington Post—announced they would hold off on publishing or distributing still photographs taken as part of the White House pool coverage.
On Wednesday, 49 media organizations filed a legal brief voicing their support of CNN, MS NOW, and Politico. “Stripping journalists and news outlets of their rights because of perceived editorial viewpoint violates decades of Supreme Court jurisprudence and is impermissible in any type of forum, including the White House,” the brief argued.
