Judge Tim Kelly expressed skepticism about the government’s arguments for ending its temporary restraining order and allowing enforcement of the White House press ban. Kelly repeatedly pointed out to the Justice Department lawyer that he was bound by D.C. Circuit precedent, including precedent that the administration opposed. One line of questioning for government lawyer Michael Velchik focused on the lack of notification the media received before the White House cut off their access. The case law on due process claims (one of the main claims the media is making in this case) says that only in “hair on fire” situations can the government take away a right it has granted to a person without giving him advance notice, Kelly said, emphasizing the requirement that the government show that there was an “urgent need” to take immediate action. The situation in this case, however, seemed “more attenuated,” Kelly said. The judge also questioned Velchik about the gap between the justification Trump has repeatedly given for banning the media (Trump, in repeated public comments, pointed to his history of negative coverage of him) and the national security justification the Justice Department relies on in court papers. Kelly said it was “unusual” that “the decision maker seems to have said… I’m taking this action because ‘x’ and ‘y,'” and now the government is saying, “it’s ‘z.'” “It just seems like that fact pattern is hard to find” when 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 majority-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 journalists for national security reasons in some contexts, he seemed skeptical about how the administration was trying to use that justification in this case. He asked Velchik to explain “the strongest aspects of the record” that reinforce the national security rationale.
