CNN, MS NOW and Politico make final written effort to convince judge to maintain White House access

By Hannah Rabinowitz, Holmes Lybrand, Katelyn Polantz, CNN

(CNN) — Lawyers for CNN, MS NOW and Politico said Monday that the White House had offered no new evidence to support its repeated claims that the news outlets’ reporting has endangered national security.

The argument, made in a court filing late Monday, is the companies’ final written effort to convince federal Judge Timothy Kelly to indefinitely maintain White House access for CNN, MS NOW and Politico journalists after President Donald Trump revoked their credentialed press access last month.

“At every turn since, Defendants have sought to justify the President’s ‘ban on the free press’ with a series of shifting rationales, lurching from unarticulated standards of professionalism to nebulous and pretextual concerns about protecting national security,” the filing reads.

“But all the while, the President himself has continued telling anyone who will listen precisely what this ban is really about, most recently complaining at length in an interview with Time magazine that he banned Plaintiffs because he feels that he should not ‘be forced to bear’ what he considers ‘constantly bad stories.’”

Kelly will hold a hearing Thursday on the news outlets’ request for a preliminary injunction, which, if granted, would last for a longer period of time while the case plays out.

In late September, Trump announced he was barring the three outlets from covering him at the White House, citing their “negative stories.” CNN, MS NOW and Politico quickly sued, and won back temporary access.

In his initial ruling, Kelly said the White House must follow five decades of DC court precedent, which bars the White House from revoking journalists’ press access without first giving them notice and a chance to respond.

The lawyers in the Monday filing asked that the judge allow them to show the court why “any further access restrictions” the administration might try to impose “violate the Constitution.”

The White House has “persisted in unpredictably targeting Plaintiffs,” the lawyers wrote, including by banning both CNN and POLITICO from Air Force One in recent days.

“The Oval Office and Air Force One are this administration’s go-to forum for press briefings,” the lawyers added. “The President may not use Air Force One as a flying press briefing room and then claim standardless discretion to exclude news organizations based on the content of their reporting or their perceived editorial viewpoint.”

The judge, a Trump appointee, in his earlier ruling resoundingly batted away the Trump administration’s claims that the ban was necessary because the outlets’ reporting could harm national security.

The three news outlets — represented by a single legal team — also have been arguing that the White House has discriminated and retaliated against them in violation of their First Amendment protections as the free press.

Late last week, the Trump administration doubled down on their arguments to the judge, claiming the outlets weren’t meeting “standards of professionalism and decorum” because they published sensitive national security details.

The administration is unlikely to succeed with Kelly, given his prior ruling and the past precedent he must follow. But once the judge rules following Thursday’s hearing, the Trump administration will be able to quickly go to the court of appeals.

Seventy-seven media organizations plus several press coalitions have said in court they also oppose the White House’s attempts to ban CNN, MS NOW and Politico.

The mainstream press coalition wrote recently they are still concerned other outlets could be blocked from White House coverage in the future.

This story has been updated with additional details.

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