By Jan Wolfe and Jack Queen
WASHINGTON, Sept 23 (Reuters) - A US judge appeared skeptical on Wednesday about the legality of Donald Trump's decision to bar CNN, MS NOW and Politico journalists from the White House, indicating he may grant their request to lift the ban they describe as unlawful retaliation for news coverage the president dislikes.
US District Judge Timothy Kelly said at a hearing in Washington that Trump's ban did not appear to comply with past legal precedents by failing to give the news outlets an opportunity to respond. Kelly did not immediately rule on a bid by the three outlets for a temporary restraining order lifting the ban while their legal challenge plays out, but said he would do so soon.
Trump announced the ban on Friday on his social media platform, saying those news organizations "shouldn't be able to constantly write or report FICTION and LIES when they're covering the President of the United States." The Justice Department has emphasized Trump's contention that the ban is legally justified on national security grounds.
The outlets said in a lawsuit filed on Monday that the ban violated the US Constitution's First Amendment protections for freedom of speech and a free press, as well as their rights to due process, meaning fair treatment from the government.
The judge said it does not appear that Trump complied with two past rulings by the US Court of Appeals for the District of Columbia Circuit by failing to give the news outlets a meaningful opportunity to contest the revocation of their access.
Kelly, who Trump appointed in 2017, noted that the government contends that those cases were wrongly decided.
"Maybe they were wrongly decided, maybe they weren't," Kelly said. "But as a district court judge I have to apply them. I think it is fair to say the process the circuit laid out in those two cases wasn't followed here."
Theodore Boutrous, a lawyer for the news outlets, told Kelly that the ban discriminated against them based on legally protected speech and violated their rights to due process.
"The president said, 'I don't like what you're publishing. I'm taking away your press pass based on that,'" Boutrous said.
'A PIECE OF PAPER'
Michael Velchik, a Justice Department lawyer, accused the news outlets of publishing classified information, and said they knew that doing so was illegal. He also said the government gave a sufficient explanation and opportunity to respond in letters sent to the news outlets on Tuesday, though Kelly was skeptical of this argument.
"I don't know how a letter that they got after the pass was revoked could provide them with the notice of the kind of standards that they would have to conform their conduct to, since it's a piece of paper they got saying, 'You've already violated this,'" the judge said.
Trump's ban is the most dramatic of his recent clashes with the media, which he has accused of trying to hurt his fellow Republicans ahead of the November midterm elections in which the party is fighting to retain control of Congress.
In a filing on Tuesday, the Justice Department argued that access to the White House is a privilege, not an entitlement, and that the president has the power to suspend access by news organizations. It accused the outlets of threatening national security with their coverage, citing stories about US missile stockpiles, construction of Trump's White House ballroom and turnout at the recent Republican midterm convention.
'OUR LEAD WITNESS'
Boutrous said Trump's social media posts made clear that the president took exception to adversarial reporting produced by the three outlets, and then latched onto national security as a "pretext" for revoking their access.
"He keeps proving our point," Boutrous said of Trump. "He's really our lead witness here."
In a 2018 case that raised similar legal issues, Kelly ordered the White House to restore CNN correspondent Jim Acosta's press pass, which had been revoked after a contentious news conference with Trump. Kelly ruled in that case that the White House had not used fair and clear procedures to revoke Acosta's credential.
In a social media post on Monday, Trump indicated regret over appointing Kelly and said he was bracing for a loss.
A coalition of press freedom groups and dozens of news organizations filed a legal brief on Wednesday supporting the three news outlets targeted by Trump. They asserted that "stripping journalists and news outlets of their rights because of perceived editorial viewpoint violates decades of Supreme Court jurisprudence."
The brief was signed by the Reporters Committee for Freedom of the Press, Reuters, the Washington Post and Fox News, among others.
(Reporting by Jan Wolfe and Jack Queen; Editing by Tom Hals, Noeleen Walder, Edmund Klamann and Will Dunham)
