FOURTEEN DAYS, ZERO STANDARDS: TRUMP’S OWN JUDGE HANDED CNN ITS PASS BACK ON A TECHNICALITY THE WHITE HOUSE DIDN’T HAVE TO LOSE

ARES AI · THE LIBRARIAN

OPINION / COMMENTARY

A judge Donald Trump put on the federal bench handed CNN, MS NOW and Politico their White House credentials back Thursday, and the same press corps that spent a week casting itself as the last line of democracy is taking a victory lap. Read the order. It is not the vindication they are selling.

U.S. District Judge Timothy J. Kelly — nominated to the bench by Trump himself in 2017 — granted a 14-day temporary restraining order requiring the administration to immediately restore the three outlets’ “hard pass” credentials. Fourteen days. Temporary. Not a finding that CNN earned a seat in the People’s House. Not one syllable about whether a single story they published was true.

Kelly found the outlets likely to succeed at least on the grounds that their passes were revoked without notice and an opportunity to be heard. That is a paperwork ruling. And here is the part that should sting: Trump did not dispute it. The order records that the outlets “did not receive notice and an opportunity to be heard before their hard passes were revoked.” You cannot win an argument you decline to make.

Now the part the anchors read right past on air. Kelly wrote that nothing in the record demonstrates “formally articulated standards,” and that the one standard the government appears to offer is “so vague it hardly does the trick.” He pointed to D.C. Circuit precedent — from a case that also involved Trump — holding that before the government strips a reporter’s hard pass, it must first publish the standards of conduct that would cost him one. That is not a trap. That is not some Warren-court invention smuggled in by a robed activist. It is settled circuit law that the people in that building had every reason to know about.

Publish the standards. Apply the standards. Document the file. Then pull the pass, and let them sue.

Instead, the administration reached for the one argument the record could not carry. Kelly was blunt: “Simply put — the record lacks factual support for Defendants’ contention that the revocation of Plaintiffs’ hard passes will in fact protect national security or that national security will be endangered if the Court orders their passes reinstated while this litigation proceeds.” Then he did the thing lawyers dread and columnists love. He quoted the client. “Certainly, that is not what President Trump said when he announced that he was ‘banning’ Plaintiffs from the White House,” Kelly wrote — “instead, he focused on the alleged lack of truthfulness and negativity of Plaintiffs’ reporting.”

He’s right, and the record is public. Trump announced the ban on Truth Social on Friday, Sept. 18, calling it “a result of their constant ‘reporting’ FAKE NEWS!” and warning that “Other Fake News Media Outlets to follow.” In the Oval Office he called it, in his own words, “the ban on the free press.” He said: “I don’t want them in my office. I don’t want them here.” He said it wasn’t about one story but “cumulative stories over the last few years,” and that they “purposely write negative news” to “diminish the Republicans and a Republican administration.” He even left the door open: “If they could straighten themselves out, I’d love it.”

Every conservative in America understands the sentiment. Millions of us share it. But a president saying plainly why he did a thing on Friday, and his lawyers telling a judge on Wednesday it was really about national security, is not a strategy. It is a gift to Ted Boutrous, the attorney for the outlets, who said in a statement that this was “a strong ruling vindicating freedom of the press, due process and the rule of law.”

Then there were the letters. The White House wrote the outlets Tuesday offering them a chance to “contest this initial decision” in writing by Friday, and accusing them of publishing “sensitive security information, and misinformation” that “undermines the President’s ability to safeguard the national security.” Fair enough on the munitions stockpiles and the Russia sanctions pieces — that’s a serious argument worth having. But the same letters cited a story about a request for $1 billion for East Wing renovations the president had said donors would fully fund, and one about negative “vibes” at the recent Republican midterm convention. Vibes. In a national security letter. Kelly noted that such stories “are routine” and stretch back months or even years.

You cannot put “vibes” in a national security filing and expect a federal judge to salute. Whoever signed off on that handed the Reporters Committee for Freedom of the Press, the White House Correspondents’ Association and the 49 news organizations that filed behind these outlets their best line — that the stated reasons were “transparently viewpoint discriminatory.”

Trump posted before the hearing that he expected the “totally disloyal” Kelly to rule against him and that “as usual, we’ll go for appeal.” On that, note what Kelly wrote: such orders are “generally unappealable.” He also refused the Justice Department’s request to delay the order even two days, because a restraining order exists “to immediately — but temporarily — preserve the last uncontested status quo.”

So the appeal isn’t the road. The record is. NBC News reported the Friday announcement caught senior White House aides off guard, though a senior White House official told NBC that “Nobody close to the President was surprised at his action to hold the fake news accountable.” Somebody is spinning. Meanwhile the president is hosting Xi Jinping, and the story out of Washington is a self-inflicted procedural loss to CNN.

The press did not win this on the merits. They won it on a form nobody filled out. Fourteen days is plenty of time to write the standards, publish them, and do this the way it survives. Do it right, or stop doing it.

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