Judge Tim Kelly expressed skepticism about the government’s arguments to end his temporary restraining order and allow the enforcement of the White House media ban.
Kelly repeatedly noted to the Justice Department attorney that he was bound by DC Circuit precedent — including the precedent that the administration was objecting to.
One line of question for government lawyer Michael Velchik was focused the lack of notice the outlets received before the White House cut off their access. The case law around due process claims — one of the key claims the outlets are making in this case — says that only in “hair on fire” situations can the government yank away a right it has granted a person without given them advanced notice, Kelly said, emphasizing a requirement that the government show there was “urgent need” for taking immediate action.
The situation in this case, however, seemed “more attenuated,” Kelly said.
The judge also grilled Velchik on the gap between the rationale that Trump has repeatedly given for banning in outlets — Trump, in repeated, public remarks pointed to their history of negative coverage of him — and the national security justification that the Justice Department is leaning on in court filings.
Kelly said it was “unusual” that “the decision maker seems to have said …I am taking this action because ‘x’ and ‘y’,” and now the government is saying, “it’s ‘z’.”
“It just seems like that fact pattern is a hard one to find” looking at other relevant cases, Kelly said, calling it an “uphill climb” for the Justice Department.
Velchik argued that the Supreme Court decision upholding Trump’s travel ban against mostly Muslim countries in his first administration supported the administration on this front.
While Kelly seemed somewhat open to the idea that the White House could ban reporters for national security reasons in some contexts, he appeared skeptical of how the administration was trying to use that justification in this case. He asked Velchik to walk him through “the strongest things in the record” that bolster the national security justification.