Trump sabotaged his own lawyers’ defense with one admission: legal expert

President Donald Trump undermined the legal argument of his administration regarding the ban on the press when he publicly stated the reasons for excluding three news organizations, as Cornell Law professor G.S. Hans pointed out.

Hans stated in his article for Balls & Strikes on Thursday that Trump's own statements made it more difficult for the administration to claim that it was justified in taking away the White House press credentials of CNN, MS NOW and Politico on the grounds of national security, the three organizations having then brought legal action after their reporters' "hard pass" credentials were disabled following Trump's announcement on September 18.

At the time, Trump said the organizations "constantly write or report fiction or lies." However, when the case reached federal court, administration lawyers claimed the restrictions were meant to protect classified and sensitive national security information.

On 24th September, Judge Timothy Kelly, who was appointed by Trump, issued the media outlets a temporary restraining order and instructed the White House to reinstate their credentials. The judge stated that the organizations would probably succeed in their Fifth Amendment due process claim since their passes had been taken away without sufficient notice or an opportunity to respond.

The judge also discovered that there was little evidence to back up the government's assertion regarding national security. Kelly stated that prior to the lawsuit no evidence had existed to show that the revocations had been based on national security concerns; instead, he pointed out that Trump had referred to what he described as inaccurate and negative coverage when announcing the ban.

Hans, who is in charge of Cornell Law School’s Civil Rights and Civil Liberties Clinic and who teaches courses on the First Amendment, stated that the president's admission had created a direct problem for the government's lawyers.

Hans wrote, “Donald Trump opening his mouth to tell the truth made it impossible for his lawyers to depict the government’s actions as something lawful.”

The professor also pointed out that the conflict involved a separate First Amendment question. The news organizations claimed that the White House had targeted them because of the way they had reported. Hans stated that although the government does have greater control over access to a nonpublic forum such as the White House briefing room, it cannot still exclude speakers simply because officials dislike their views.

When he granted the temporary order, Kelly did not decide the outlets' First Amendment claim; rather, he based the immediate relief on the Due Process Clause, referencing decades of precedent from the D.C. Circuit concerning White House press credentials.

The temporary order will remain in force as the case goes on; Kelly stated that the government had not put forward any statements or evidence to demonstrate that bringing back the passes would endanger national security, since the reporters would still be losing their constitutional rights if their access was kept denied during the legal proceedings.