The Department of Justice said Wednesday it is appealing a federal judge’s decision to extend his order blocking the White House from enforcing its ban on MS NOW, CNN and Politico.
The notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit came less than a day after U.S. District Judge Timothy Kelly ruled that the three outlets targeted by President Donald Trump can keep their access to the White House complex.
That ruling, a preliminary injunction, replaces Kelly’s temporary restraining order against the ban that Trump first announced on Sept. 18. It is not a final ruling in the ongoing lawsuit that the three news outlets filed against Trump, White House chief of staff Susie Wiles, U.S. Secret Service Director Sean Curran and White House communications director Steven Cheung.
Kelly, in an opinion filed Tuesday night, said the plaintiffs are likely to succeed on their claims that Trump and his co-defendants violated their First Amendment rights through unlawful retaliation and viewpoint discrimination.
“It is likely that Plaintiffs were selected by President Trump for revocation of their access to the White House press area because he believes their coverage of him and his administration is generally inaccurate and biased,” wrote Kelly, whom Trump nominated in 2017 for his current seat.
“In other words, it was ‘an effort to suppress the speaker’s activity due to disagreement with the speaker’s view’ … rather than to vindicate any other purportedly ‘compelling governmental interest,’ … including maintaining professional standards for journalists or protecting national security,” he wrote.
“Simply put, that is unlawful viewpoint discrimination,” the judge wrote.
Kelly was also unmoved by arguments that the decision to revoke the outlets’ White House access was partly based on national security concerns
“There is no evidence in the record that President Trump made the decision to revoke Plaintiffs’ hard passes on national security grounds from the get-go, nor at any time has he directly stated that national security was the reason for his decision,” Kelly wrote.
Trump did not mention national security in his initial Truth Social post announcing the ban, nor did he do so when asked about the move later that same day, Kelly noted.
“All this suggests that ‘national security’ was merely a post-hoc justification for the decision,” the judge wrote.
