Trump-nominated judge cites Trump's own words to block the White House ban on three outlets indefinitely

The order now stands on three findings. Kelly found the outlets likely to succeed on one due process claim and two First Amendment claims (retaliation and viewpoint discrimination), three in all ^[16], and CNBC reported that the First Amendment findings are the first of their kind in this case ^[2]. The due process claim is the simpler one: the outlets were barred without a chance to argue first ^[3], and two D.C. Circuit opinions that bind district judges in Washington establish that right for journalists whose White House passes are targeted ^[4]. The retaliation and viewpoint claims turn on motive.

Kelly was nominated to his seat by Trump ^[7], and the evidence of motive he relied on is Trump's own. On Sept. 18 the president said he was banning the three outlets because of how they had covered him ^[12]. His Truth Social post that day said the outlets "shouldn't be able to constantly write or report FICTION and LIES when they're covering the President of the United States, the Trump Administration, or the United States of America" ^[13], and later the same day he said he had become "sick" of "cumulative stories" ^[14]. The ban took effect the next day, Sept. 19, when journalists from the outlets were denied access to the White House grounds and Secret Service officers confiscated their permanent passes ^[9].

Our view is that the two motive findings are harder for the White House to undo than the due process one, since the statements are already made. The opinion itself leaves an opening. Kelly wrote: "Still, no one should interpret the Court's decision to suggest that President Trump's concerns about accuracy and fairness in the media's reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed" ^[6]. In our view that passage leaves room for a revocation grounded in a national security finding documented at the time it is made.

The plaintiffs' lawyer goes further than the judge. Theodore Boutrous Jr., an attorney for the outlets, said in a statement that "the President has repeatedly, candidly, and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn't like and to try to force journalists to cover him in ways he prefers" ^[15]. The opinion's verb is "suggest," which fits the likelihood standard at this stage, and its other finding is that without an injunction the outlets were "likely to suffer irreparable harm" ^[17].

We would be wrong if an appeals court treated the Sept. 18 statements as too thin to show motive. The due process ground would then carry the order alone, and the White House would know which step to add.