CNN is warning that it is prepared to legally challenge the Trump White House‘s continued restrictions on its reporters from Air Force One and the Oval Office.
A federal judge last week issued a preliminary injunction that prohibits the White House from pulling the hard passes of CNN reporters and other personnel, along with those from MS NOW and Politico. Those hard passes provide access to the press areas on the White House grounds.
But as one of five networks in the TV pool, CNN has continued to be shut out of access to Air Force One even though it was assigned to out-of-town TV pool duty. That has meant there has been no primary TV pooler on certain days of presidential travel over the past month.
In a letter to Michael Velchik, the DOJ senior counsel representing the Trump administration, CNN’s lead attorney Theodore Boutrous Jr. wrote that “if these actions persist, CNN will have no choice but to return to the court to defend its rights, and it is prepared to fight as long as is necessary to secure them.” He called on the DOJ to confirm in writing by Thursday that the White House would abandon any policy of excluding the network from the Oval Office and Air Force One.
In his ruling last week, U.S. District Judge Timothy Kelly ruled that CNN, Politico and MS NOW were likely to succeed in their claims that Donald Trump‘s blanket ban on the outlets from the White House violated their due process rights and First Amendment rights. Trump cited his unhappiness with the outlets’ reporting in announcing the ban, although the DOJ later claimed it was due in part to national security reasons. The Trump administration is appealing.
CNN first reported on Boutrous’ letter.
Kelly’s ruling did not directly address the issue of whether the White House can also ban news outlets from more restricted spaces, like the Oval Office and Air Force One.
That question is been the subject of litigation brought by the Associated Press last year after the White House banned it from the pool and access to the Oval Office and other areas. The action was a White House punishment because the AP style guidance was not changed to reflect Trump’s executive order to switch the name of the Gulf of Mexico to the Gulf of America.
A federal judge ruled that the White House had to restore the AP’s access in cases where other media also are invited, finding that the ban was a form of viewpoint discrimination in violation of the First Amendment. But an appellate panel issued a stay on much of the lower court ruling, concluding that the White House was likely to succeed on its claim that the Oval Office and Mar-A-Lago “are not First Amendment fora opened for private speech and discussion.”
“The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted,” the appeals judges wrote. A decision on the broader merits of the case is pending.
In the letter to the DOJ, Boutrous noted that the AP ruling was non-binding and non-precedential. “These efforts to retaliate and discriminate against CNN based on the content of its news coverage are mistaken, counterproductive and unlawful,” he wrote.
He also made the case that the Oval Office and Air Force One “have overtaken the White House Briefing Room as the principal fore where the president interacts with the press by briefing reporters and answering questions.” He noted that of the three places, Trump has taken nearly 5,000 questions, with 97% of those in the Oval Office or connected to Air Force One travel.
A DOJ spokesperson did not immediately return a request for comment.