Judge Kelly must reject Trump's flawed press pass procedure

By Adele Rutherford · Reporting from Atlanta · September 23, 2026

When President Trump revoked news passes without prior notice, the administration violated basic due process that Judge Kelly must enforce to preserve the rule of law.

The process is the power

We learned in the fall of 2000 on Forsyth Street that when the machinery of the state gets rushed, the mechanics matter more than the outcome. A court does not run on the grievances of the hour. It runs on whether the actor followed the rule as written. The day is coming when your opponents will hold the pen and the stamp.

On Wednesday, September 23, 2026, U.S. District Judge Timothy Kelly heard arguments in a federal courtroom in Washington, D.C., on an emergency lawsuit filed by CNN, MS NOW, and Politico. The plaintiffs asked the court for a temporary restraining order to restore hard passes revoked after President Donald Trump announced an immediate ban on the three outlets. The administration’s lawyers offered a defense that collapses when tested against the rule of law. They argued that access to the White House is a privilege, not a right, and that the ban was a necessary measure to protect national security.

The historical pattern here is old and predictable. Executive branches across parties chafe at scrutiny and reach for administrative levers to punish publishers. What makes this instance distinct is the velocity of the pivot from public retaliation to a post-hoc security rationale. When the president announced the ban on September 18, 2026, he cited "cumulative" stories and constant "fake news" on Truth Social. He told the public in the Oval Office, "I don't want them in my office." Not a word of national security crossed his lips that Friday. Only after the lawsuit landed did the Justice Department scramble to file letters accusing the outlets of publishing sensitive information on the Iran war and the construction of a White House ballroom.

Judge Kelly, appointed by President Trump in his first term, saw through the sequence immediately. He noted from the bench that the administration failed to provide the pre-deprivation notice and hearing required by D.C. Circuit precedent. "I don’t know how a letter that they got after their pass was revoked could provide them with the kind of standards they would have to conform their conduct to," Kelly observed during the hearing, according to reporting by CNN and CNBC. Justice Department attorney Michael Velchik urged the court not to restore the passes, while media attorney Theodore Boutrous countered that the ban was an unprecedented and severe punishment born of viewpoint discrimination.

If we permit the executive to strip a journalist of credentials for bad coverage today, we grant the same unreviewable discretion to the other side tomorrow. Procedure is the only armor a citizen has.

The fiction of post-hoc notice

The strongest opposing case for the administration rests on the commander-in-chief's authority over sensitive government spaces and classified information. As Justice Department attorney Michael Velchik argued in court filings reported by Politico and CNBC, access to the executive complex is a privilege rather than a right. The executive argues it must take immediate action to prevent the disclosure of state secrets. If a reporter compromises national security, the argument goes, the president cannot wait for a civil trial before removing them from the grounds.

The argument has force in the abstract, but it evaporates upon inspection of the record. The letters sent to the news organizations on Tuesday, September 22, 2026, cited reporting on matters such as a Politico article regarding midterm convention "vibes," alongside stories on Russia sanctions and FBI leaks. Crucially, as noted in reports by Politico and NBC News, the administration’s own letters did not claim that the cited stories contained classified information.

As Theodore Boutrous argued before Judge Kelly, the national security defense is a litigation construct invented after the fact to mask retaliation. You cannot punish a reporter for bad vibes on Tuesday, claim national security on Wednesday, and pretend you followed due process. More than four dozen media organizations, including Fox News, The New York Times, The Associated Press, and NBCUniversal, filed an amicus brief organized by the Reporters Committee for Freedom of the Press and the White House Correspondents’ Association, condemning the move as constitutionally repugnant viewpoint discrimination. When major networks and wire services refuse to use pool footage or audio out of solidarity, as reported by theguardian.com and CNA, the administration's action has ceased to be about security and has become an attempt to curate its own audience through Trump TV.

The White House Press Pass Case

The White House Press Pass Case stands as the structural anchor for this dispute. The record defines the White House press secretary as a senior White House official whose primary responsibility is to act as spokesperson for the executive branch of the United States federal government, especially with regard to the president, senior aides and executives, as well as government policies.

This mechanism is identical to the one litigated in Acosta v. Trump in 2018, where Judge Kelly ruled against this very administration when it yanked CNN correspondent Jim Acosta's hard pass after a volatile press conference. Then, as now, the executive tried to substitute presidential whim for administrative due process. Judge Kelly ordered Acosta's pass restored because the Fifth Amendment demands that a reporter know the rules and have a chance to answer before the state takes their livelihood away.

The parallels run deep into our constitutional memory. In the Pentagon Papers era, the executive invoked national security to stop publication, only for courts to reject prior restraint. The mechanism shared across these chapters is simple: the state cannot use the vocabulary of state secrets to launder viewpoint discrimination. If the administration wants to set rules for the press corps, it must do so through transparent, codified standards applied evenly before credentials are clipped from a reporter's belt, not via a Friday night social media post.

Judge Kelly has a duty to apply the case law as it stands, regardless of who appointed him or who holds the office. He must grant the temporary restraining order, reject the fiction of post-hoc notice, and remind the executive branch that power governed by whim is no power at all.

Judge Kelly must reject Trump's flawed press pass procedure

The process is the power

The fiction of post-hoc notice

The White House Press Pass Case

Sources