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- 02/04/17--11:15: _Why Corporate Ameri...
- 02/04/17--12:35: _The White House Has...
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- 02/06/17--19:45: _This White House Li...
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- 02/07/17--13:07: _Can Steve Bannon Su...
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- 02/07/17--18:54: _Trump Says Confirma...
- 02/08/17--14:49: _Supreme Court Nomin...
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- 02/09/17--04:49: _Dakota Access Pipel...
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- 02/09/17--18:12: _The Conservative Wh...
- 02/10/17--11:41: _Trump's Travel Ban ...
- 02/10/17--11:52: _Administration Lawy...
- 02/03/17--07:54: The White House Is Drafting An Executive Order On HBCUs, Sources Say
- 02/03/17--19:03: Trump's Pick For Army Secretary Has Abruptly Withdrawn His Name
- 02/04/17--11:15: Why Corporate America Is Taking Sides On Trump
- 02/06/17--07:12: Democrats Confront Lefty Fake News
- 02/07/17--06:57: Melania Trump Settles Her Defamation Lawsuit Against A Blogger
- 02/07/17--13:07: Can Steve Bannon Survive The Media’s Steve Bannon Obsession?
- 02/08/17--14:49: Supreme Court Nominee Calls Trump's Judicial Attacks “Demoralizing"
- 02/09/17--18:12: The Conservative Who Saw Trump Coming
- 02/10/17--11:41: Trump's Travel Ban Is On Hold, But Court Challenges Press On
Pool / Getty Images
WASHINGTON — The White House is working on an executive order regarding historically black colleges and universities, according to three sources familiar with a Wednesday morning "listening session" with President Trump in commemoration of Black History Month.
In the listening session, convened by Omarosa Manigault, Trump made some of his most expansive remarks on black history, including a controversial statement about Frederick Douglass, which led some to believe he didn't know if he was dead or alive. That was one piece of controversy; the administration also took heat because the only people involved were Trump surrogates who worked on the campaign or were already working for the administration.
It's not clear what the executive order will do, sources with knowledge of the executive order said. But the subject turned to HBCUs when Paris Dennard, a political commentator who works on strategic communications for the Thurgood Marshall College Fund, brought up the future of HBCUs during the meeting.
Trump lavished Dennard with praise for defending him on CNN when the cameras were still on. "Paris has done an amazing job in a very hostile CNN community," Trump said, deriding CNN as "fake news" he no longer watches. "He's all by himself — seven people and Paris. I'll take Paris over the seven," Trump said to laughter.
When the White House press corps left, the mood changed. Dennard told BuzzFeed News he told the president that he could go down as one of the greatest presidents in modern history, and that his support of HBCUs was badly needed — especially given how HBCUs fared under the previous administration.
Dennard and two other sources said this piqued the president's interest. According to two people in the room, Trump asked what "the Harvard" of HBCUs was. At least three people in the room affiliated with the school said Howard University, located a short distance from the White House in Washington, DC. Trump asked how Howard was doing fiscally, with enrollment, and how it had done under President Obama.
"He was shocked and upset to learn what happened under the previous administration," Dennard said.
Attendees told Trump that while Howard was receiving federal funds and doing fairly well, many others were struggling, with someone in the room linking the state of HBCUs to President Obama.
Trump asked what he needed to do, according to a source in the room. That's when Manigault said she was working on getting an executive order on HBCUs on Trump's desk.
Since then, two sources familiar with the matter told BuzzFeed News that something was being worked on. Dennard declined to comment on whether there was an executive order in the works.
In recent weeks, Talladega College came under fire for its decision to perform at Trump's inaugural parade. Armstrong Williams, a longtime GOP leader and associate of HUD Secretary Dr. Ben Carson, offered to sponsor that trip.
Another source speculated that the White House Initiative on HBCUs, housed under the US Department of Education under Obama, might be moved to be run out of the White House.
Reached by BuzzFeed News, Manigault said she had no comment on an executive order related to HBCUs.
"I can however reinforce the president's commitment to support historically black colleges and universities, as well as school choice as he stated throughout the campaign."
Vincent Viola enters Trump Tower on Dec. 16.
Andrew Kelly / Reuters
President Trump's nominee to head up the US Army has abruptly withdrawn his name from consideration, saying he can't disentangle himself from his businesses.
In a statement to BuzzFeed News, billionaire businessman Vincent Viola said he would not accept the nomination to serve as Army Secretary because the challenges of separating himself from his organizations have "proven insurmountable."
“I am deeply honored to have been considered for this post and appreciate the confidence President Trump showed in me,” the statement quotes Viola as saying. “I offer my continued support for President Trump and his administration, and look forward to redoubling my efforts to support the Army and its veterans as a private citizen.”
Trump tapped Viola, 60, to serve as Army secretary in December and observers quickly noted his extensive business ties could potentially create conflicts of interest. Viola tried to sell his stake in Eastern Airlines and acquire a stake in a charter airline that according to the New York Times had millions of dollars in government subcontracts.
The White House did not immediately return a BuzzFeed News request for comment or say who might replace Viola as nominee for Army secretary. The Military Times first reported that Viola was dropping out.
Viola, a Brooklyn native, served in the 101st Airborne Division during Vietnam. He later went on to a career on Wall Street and served as the chairman of the New York Mercantile Exchange between 2001 and 2004. He founded electronic trading company Virtu Financial in 2008, and the company ultimately made him a billionaire.
Viola is the first of Trump's nominees who would have needed congressional approval to withdraw. Monica Crowley and Jason Miller both previously bowed out of other administration jobs that did not need approval from Congress.
Corporate America rarely likes to take sides — but in Trump’s America, where millions of consumers are quite comfortable making their opinions known, the makers of products like deodorant, beer, cereal, and luxury automobiles are being pushed to get political.
This week, Dove unveiled a United Kingdom ad mocking “alternative facts,” which administration official Kellyanne Conway coined in a now-famous interview. Dove — which has for years campaigned through a strategy of female empowerment — lists its own alternative facts in the print ad, like how its antiperspirant was first used by Cleopatra and will increase your IQ by 40 points.
Even if it’s within the frame of their ads over the last few years, the Dove campaign is a definite, deliberate departure from the more gentle, affirming tone of yore. Same for the fact that the ad was for a British audience — now, ads largely are meant for the internet.
Other marketers have been pushed to make hedged political statements from movements like #GrabYourWallet, a boycott of companies that carry Trump products. Nordstrom this week said it was dropping the Ivanka Trump collection, though the company cited declining sales as the reason.
In December, cereal company Kellogg found itself embroiled in politics when it decided to yank its ads from Breitbart News, only to spark a #DumpKelloggs boycott campaign from the right-wing news site.
These aren’t tiny fringe brands seeking attention through political action. These are major corporate behemoths and huge venture-funded startups like Uber, and they’re being forced by their consumers to make calls on politics like never before.
Marketers tend to avoid politics because stepping into the fray can needlessly anger a large portion of a brand’s consumers. But companies, desperate to be a part of “the conversation” across social media, are also realizing there’s only one conversation happening in America right now.
The current fraught political environment is coming to a head right before the Super Bowl, where dozens of brands are plunking down about $5 million for 30 seconds of the most lucrative advertising time in television.
“Everyone is going to watch every Super Bowl ad this year and think about what message they are sending. We are hypersensitive,” said Jim Stengel, former global marketing chief at consumer products giant Procter & Gamble.
A few pre-released Super Bowl ads are already getting attention for appearing to make prescient political statements, even though they are typically conceived of months in advance. A 60-second spot from Budweiser, for instance, tells the brand’s origin story of a scrappy immigrant working hard to achieve his beer-making entrepreneurial dreams.
Audi’s Super Bowl ad, which has already generated about 5 million views on YouTube, promotes equal pay for women. Some viewers saw it as political, the Wall Street Journal reported. “Audi of America is committed to supporting pay equality, inclusivity, and the growth and development of all employees,” the company said in a statement to the Journal.
“Brands tend to be pressured to take this moral high ground, which means either stay out of things that might be potentially controversial at the risk of alienating somebody, or they will go to safely polarizing messages like ‘inclusion,’” said Ian Schafer, CEO and founder of creative ad agency Deep Focus.
The question going forward will be how brands navigate the Trump administration. Do they choose to engage -- and on what issues?
“We’re seeing corporate democracy in a sense. People are picking a lane,” said branding consultant Dean Crutchfield. In other words, it’s brand activism with business repercussions. “Market share is at stake here,” Crutchfield said.
Meanwhile, some ad executives think Trump’s victory will bring in a wave of plainspoken ads meant to target the vast swath of Americans that clearly felt that the establishment -- politicians, media, and the cultural conversation around brands -- were out of touch.
“You’re see a really interesting narrative that middle America is having a moment,” said Eric Weisberg, global chief creative officer at advertising agency Doner. “What we see now is a heightened awareness of the divide of things in the country, and you see that people want to make sure that brands are related to their values.”
Alex Brandon / AP
WASHINGTON — There’s a way that a White House usually rolls out a big change: with the media.
“If you want the most people to see it, even in today’s digital media environment, doing something with the Associated Press is the way to go,” a former senior Obama administration official said. “If it’s a complicated thing around a piece of very arcane inside-baseball operations over at the Department of Defense, you might want to go to the New York Times reporter who has covered defense for 25 years.”
And sometimes, if it’s a really big change, the change won’t take effect for weeks.
That’s not how the White House handled the executive order that shut down the global refugee program for months, and ended with protests, legal challenges, and confusion at America’s international airports over just who could enter the country.
The president signed it; the White House later released the language; and, as departments sorted out details, administration officials ended up scrambling onto weekend talk shows and giving an unexpected briefing to reporters on Sunday night.
In the week since, the administration has apparently started retooling its strategy.
On Monday, two senior administration officials walked reporters through Trump’s order to reduce regulations on businesses by eliminating two orders for every one new regulation.
On Tuesday, administration officials briefed reporters ahead of a cybersecurity order that was eventually scrapped.
On Thursday, ahead of two financial services executive actions, officials gave a briefing embargoed until 5:30 a.m. so that television networks would be able to share the information with viewers during the morning shows.
The change in strategy is a welcome one for Republicans who have privately grumbled that whether you support the content of the executive order on the travel ban, the communications strategy behind it was disappointing, leading to confusion over whether green card holders were subject to the new rules or not. (Key surrogates on the Hill were left flat-footed when the immigration order was announced, too.)
Julie Myers Wood, former assistant secretary of homeland security for Immigration and Customs Enforcement (ICE) during the George W. Bush administration, said enhanced communications during roll outs of sensitive policy would be helpful going forward.
“One of the reasons for some of the outcry on President Trump’s executive order on the prohibition of travel from the seven countries was that there was not a lot of communication strategy,” she said. “To an outsider it appeared rushed in some areas and could have been thought through more. It would always be concerning if you’re putting a pause on the visa process but they exacerbated it.”
The Trump administration waved away these concerns, noting that the briefings have come regularly this week and noted that because of the nature of the executive order on immigration restrictions they were limited in what could be announced ahead of time.
Another administration official blamed Democrats and critics who relish any opportunity to take shot at the Trump team, and took issue with media reports of the executive order as a “Muslim ban.”
“The seven countries who qualify under the executive order are because their governments do not have the means to provide enough information about who is traveling in and out of their country,” the official said
The official also noted that dozens of Muslim-majority countries are not subject to the travel ban, including the largest, which is Indonesia.
Officials in the Trump administration have made perfectly clear that they diverge from their predecessors both in terms of policy and how to treat the press. Chief White House strategist Steve Bannon told the New York Times last month that the press is “the opposition party” and that the media should “keep its mouth shut.”
In practice, treating the press as the opposition during a campaign and carrying that over to actual governance — where an administration faces the complex task of hawking their new policies to the public — may prove challenging at times.
Before rolling out new executive orders, “You want to put a bunch of officials on with reporters on background,” said Jon Favreau, former head speechwriter for President Obama. “To the extent that they are learning it now, great, but this is new levels of incompetence that we haven’t seen in any Democratic or Republican administration.”
The other former senior Obama administration official said that there was a learning curve and “adjustment period” for figuring out how best to brief the press before rolling out executive orders.
“Everything you do in government or in politics has a communications and press element, and your success or failure is directly tied to how that goes,” the former official said. “This is a group of people that think they know best and are learning by touching the hot stove.”
Administrations typically carefully consider how to announce new policy, with communications aides creating an hour-by-hour tick tock that seeks to control the message, former officials noted, including internal and external guidance meant to create smooth action.
Instead, the airwaves were filled with images of visa-holders and refugees who wanted to come to the United States — which even the Trump administration official acknowledged were potent.
“Some individual stories are powerful,” the administration official said, but you “have to create policies for the greater good.”
Carlos Barria / Reuters
WASHINGTON — A federal appeals court late Saturday night local time denied the Justice Department's request to allow it immediately to restart enforcement of President Trump's refugee and travel bans.
The decision from the US Court of Appeals for the Ninth Circuit means the bans will remain on hold through the weekend, with a decision on a further request to reinstate the ban put off until at least Monday afternoon.
Justice Department lawyers had gone to the appeals court earlier Saturday, asking for an immediate stay of a lower court's order that stopped enforcement of major portion's of Trump's Jan. 27 executive order nationwide.
The request came a little more than 24 hours after the Friday night order from US District Judge James Robart halting enforcement of much of President Trump's executive order temporarily stopping visa-holders from seven majority-Muslim countries from entering the US and shutting down the US refugee program temporarily and entrance of Syrian refugees indefinitely.
"Appellants’ request for an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal is denied," the late-night order from the appeals court stated.
In addition to the immediate stay request, the Justice Department's lawyers also asked for a stay pending the department's appeal of Robart's order. That request is still under consideration.
Lawyers from Washington and Minnesota, who had brought the challenge in Robart's court in Seattle, have until 11:59 p.m Sunday Pacific Time to file a response to the Justice Department's request. The Justice Department then has until 3:00 p.m. Pacific Time Monday to file a reply brief.
In making their case for the stay, Justice Department lawyers wrote in a Saturday night filing, "The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment."
In the brief, the Justice Department lawyers argue that the trial court's order violates the constitutional separation of powers, harms the public "by thwarting enforcement of an Executive Order" in the areas of immigration matters and foreign affairs, and "second-guesses the President’s national security judgment" regarding admission of people to the US.
Regarding the particular circumstance of the lawsuit, brought by the state of Washington, the Justice Department argues that the state has no legal standing to bring the claim because Washington "is not itself subject to the Executive Order." Even if it does, the Justice Department continues, the court's order is too broad because it stopped enforcement of parts of Trump's executive order "untethered to Washington’s particular claims."
Although temporary restraining orders like that issued by Robart are not generally appealable, Justice Department lawyers argue this order should be appealable because there was an adversarial hearing — as in, both sides were there and presented arguments — and, they assert that the length of the injunction here is "indefinite." As such, they argue, Robart's order should be treated like a preliminary injunction, which would be appealable.
The move made official what the Trump White House had promised on Friday night and followed a day of acrimonious tweeting from the president, who, at one point, tweeted that "[b]ecause the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country."
After a day of antagonistic tweeting, Trump was more subdued in comments to reporters after the notice of appeal was filed, saying only, "We'll win. For the safety of the country, we'll win."
The appeal over Executive Order 13769 is now at the Ninth Circuit, which hears federal appeals from a wide swath of the Western states, as well as Alaska and Hawaii.
Earlier Saturday, the Justice Department lawyers had filed a notice they would be appealing the order.
The Washington state attorney general who brought the lawsuit said he was not surprised by the move and would keep fighting the ban.
"President Trump's decision to appeal comes as no surprise, and we will continue to hold him accountable to the Constitution," Attorney General Bob Ferguson said in a statement. "We are confident the Court of Appeals will uphold Judge Robart's well-reasoned decision halting – immediately and nationwide – the President’s unconstitutional Executive Order."
On Friday night, US Customs and Border Protection held a call with airlines instructing them that things should basically go back to how they were before the executive order was signed. On Saturday, the State Department made that official in a significant way by reversing the provisional revocation of visas that the department had authorized after Trump signed the order. The Department of Homeland Security, under which CBP is organized, also issued a statement Saturday detailing that DHS stopped implementing the affected sections of the executive order.
This is a developing story. Please check back at BuzzFeed News for the latest developments.
Read the order denying the immediate stay request:
Read the Justice Department's Ninth Circuit request for a stay:
Washington state Attorney General Bob Ferguson, center, speaks to the media next to Washington state solicitor general Noah Purcell, right, outside the U.S. federal courthouse in downtown Seattle February 3, 2017.
Staff / Reuters
WASHINGTON — In overnight filings, the states of Washington and Minnesota, joined by Hawaii, technology companies, former senior foreign policy officials, civil rights groups, a refugee relief nonprofit, and law professors laid out the legal case against President Trump's refugee and travel ban executive order.
On Monday afternoon, a group of 16 state attorneys general — led by Massachusetts, New York, and Pennsylvania officials — filed a brief in support of the other states' challenge to the ban. Some of this group of states — Massachusetts, New York, and Virginia — already have taken action to intervene in ongoing lawsuits over the ban that started in their own states.
The filings came in opposition to the Justice Department's request that a Feb. 3 district court order halting enforcement of the executive order be stayed — or put on hold — so the government could restart enforcement of the ban while the case is appealed.
Minutes after the Justice Department filed its reply in support of its request, the US Court of Appeals for the Ninth Circuit announced that it would be holding an hour-long argument over the request at 3 p.m. Pacific Time Tuesday. The argument will be held over the phone, per the court's order. "A recording of the oral argument will be made available to the public promptly following the conclusion of oral argument," the court announced.
US District Judge James Robart issued a temporary restraining order (TRO) on Feb. 3, halting enforcement of key provisions of the Jan. 27 executive order: the ban on travel to the US from seven majority-Muslim countries and the halt to the refugee program.
"The effects of the TRO were positive and immediate, as immigration procedures began to return to normal, families reunited, stranded students and faculty began returning to our States, and longtime State residents were able to return to their homes," Washington and Minnesota lawyers wrote. "Defendants now ask this Court to unleash chaos again by staying the district court order. The Court should decline."
The US Court of Appeals for the 9th Circuit denied the Justice Department's request for an immediate stay of Robart's order on Feb. 4, but set a briefing schedule for the request for a stay pending appeal. Opponents of the executive order had filings due by 1 a.m. Pacific Time Monday, while the Justice Department's reply is due by 3 p.m. Pacific Time Monday.
The Justice Department had argued in its Feb. 4 filing that the TRO, which is not generally appealable, should be treated as a preliminary injunction, which can be appealed, because there was an adversarial hearing — as in, both sides were at court and presented arguments — and the length of the injunction here is "indefinite."
"Not so," Washington and Minnesota lawyers replied on Monday, noting that "the TRO expressly ends when 'the court can hear and decide the States’ request for a preliminary injunction.'" The states note that under their proposed schedule at the district court, a hearing on a preliminary injunction could happen within 15 days. "The Court should wait to review an order at that time, not prematurely take up this one," they argue.
A key jurisdictional question put forth by the Justice Department is one of standing, whether the states have a "concrete and particularized injury" that results from the executive order. The federal lawyers argue that the states are not subject to the order, and that, even if the states could show that they have standing to bring the lawsuit, the broad injunction goes beyond the states' particular claims.
The states counter that they have provided both evidence of direct harms — in particular to state universities and to tax revenues — and indirect harms "that the Order is inflicting grievous harms on our residents."
Beyond those two questions of whether the case and appeal are properly before the court is the main underlying question at the injunction stage: Is the Justice Department likely to succeed on the merits of its defense of the executive order?
The Justice Department, unsurprisingly, says it is, because the president has constitutional authority over "conduct of foreign relations [and] the war power" and statutory authority "to prevent the entry of any alien or groups of aliens into this country."
The states, also unsurprisingly, say it is not, because the executive order violates the Immigration and Nationality Act's nondiscrimination provision, as well as constitutional due process, equal protection, and Establishment Clause claims.
The Justice Department filed its reply brief supporting its request for a stay a little before the 3 p.m. Pacific Time deadline.
The American Center for Law and Justice weighed in to support the administration, as did Freedom Watch. A group of several conservative organizations, led by the US Justice Foundation and Citizens United, also filed a brief in support of the administration.
Hawaii, which filed its own lawsuit challenging the executive order, asked to intervene in the Washington and Minnesota lawsuit. "Hawaii’s intervention in this appeal is necessary to protect its interests, because this Court’s decision could create binding circuit precedent that affects Hawaii’s case," the lawyers for the state — including former Acting Solicitor General Neal Katyal, now at Hogan Lovells — argue in the filing asking to intervene.
The Ninth Circuit did not set a time for when it will issue a decision on whether to grant the stay (or grant Hawaii's intervention request).
This is a developing story. Please check back at BuzzFeed News for more.
Read Washington and Minnesota's opposition:
Read Hawaii's motion to intervene:
Read Hawaii's opposition:
Read the Justice Department's reply:
LINK: Read the ACLU's filing.
LINK: Read the SEIU filing.
Related Stories On Filings At The Appeals Court:
Molly Riley / AFP / Getty Images
Last year, in March, a group of Bernie Sanders voters spent days phone-banking staffers’ cell phones, imploring the campaign to challenge the vote in four states because of speculation on social media about ballot irregularities.
In April, they pointed to tweets from actor Tim Robbins alleging widespread voter fraud.
By the end of the primary, staunch Sanders supporters at state conventions would sit through the day's proceedings with their phones raised, videotaping. “There was a film-everything, everything’s-rigged mentality,” said Matt Berg, a former Sanders aide.
Two weeks into Donald Trump’s presidency, the same flashes of alarm, paranoia, and genuine outrage from the Democratic Party’s most fervent progressives have helped give rise to the left’s own distinct brand of the online phenomenon known as fake news.
If it began during the election with ad revenue-hungry hoax sites and false information campaigns directed largely at Hillary Clinton, fake news in the Trump era has seeped into the liberal online ecosystem in the form of viral posts on Medium, Reddit, Twitter, and Facebook — with progressives elevating anonymous social media accounts, floating outlandish conspiracies, and seizing on stories that don’t hold up to the facts.
There are new cases daily. Suspicions about his 2020 re-election filing. Theories about the “regime’s” plan for a “coup d’état against the United States” (complete with Day After Tomorrow imagery of New York City buried in snow). Stories based on an unverified Twitter account offering supposed “secrets” from “rogue” White House staffers (followed by more than 650,000 people). Even theories about the Twitter account (“Russian disinformation”).
Since the election, the debunking website Snopes has monitored a growing list of fake news articles aimed at liberals, shooting down stories about a new law to charge protesters with terrorism, a plan to turn the USS Enterprise into a floating casino, and a claim that Vice President Mike Pence put himself through gay conversion therapy.
In a recent interview with The Atlantic, Snopes Managing Editor Brooke Binkowski described liberal fake news as more “wish-fulfillment stuff” — “Trump About to be Arrested!” — than misinformation designed to go viral.
Jim Manley, a Democratic strategist and former senior aide to the retired Senate Minority Leader Harry Reid, put it another way: “Given how concerned people are about the state of the country, on the left there’s more and more of a twitchy finger, if you will.”
“Social media incentivizes these relatively fabricated, unsourced, or clickbait-y kind of pieces of content because there’s already this baked-in audience,” said Angelo Carusone, president of liberal group Media Matters. “Long-term, I don’t want to create a parallel universe here where the left is doing the same thing.”
Panicky liberal memes have cascaded across the internet in recent weeks, like an Instagram post regarding Steve Bannon’s powers on the National Security Council shared by a celebrity stylist and an actor. Some trolls have even found success making fake news specifically aimed at tricking conservatives.
An analysis by BuzzFeed News found that in the last three months of the election, the top 20 fake political news stories saw more engagement on Facebook than the top 20 real election stories from 19 major outlets combined. A subsequent poll revealed that a majority of Americans who recalled seeing fake election news headlines believed them to be accurate.
Democratic operatives and staffers at left-leaning media outlets predict that viral anti-Trump conspiracy theories will ultimately distract from real reporting about the administration, undermining legitimate causes for outrage on the left over what the administration is actually doing.
Still, for now, it’s a conversation that exists almost entirely outside the political class itself. Elected officials are not hawking phony stories as true, like Trump’s calls to investigate widespread voter fraud during the election. But that remove poses its own problems for leaders with no obvious way to dismantle widely shared false stories.
“It exists on the left and that’s a problem because it misinforms people,” said Judd Legum, editor in chief of progressive news site ThinkProgress. “That’s harmful in other ways because the time you’re spending talking about that, you could spend talking about other stuff.”
“It contributes to a broader environment of distrust, and it sort of accelerates the post-factual nature of our times,” said Teddy Goff, co-founder of Precision Strategies and a former senior aide to Barack Obama and Hillary Clinton. “Fake news is pretty damaging no matter who it benefits politically. No one on the left should think we ought to be replicating the fake news tactics on the right.”
Berg, the Sanders staffer, recalled trying to reason with die-hard activists during his work on the campaign handling ballot access, delegates, and legal issues. “It's hard to get people to question things and investigate and read a newspaper and stuff,” he said. “It’s going to be a challenge that will come up more and more for the progressive movement.”
Mark Longabaugh, a senior Sanders adviser, described supporters who’d turn a “nugget of fact” — the disqualified Sanders-supporting delegates at the Nevada state convention, for instance — into “fanciful ideas that we had in fact won elections that we hadn't.”
“It was best to ignore it,” Longabaugh added.
“It’s a complicated problem that cannot be solved by political parties or cause-based organizations on the left," Goff said. "It is certainly incumbent on everybody to try not to share that stuff and be a little more skeptical."
The online energy also raises questions about the party’s relationship with its base. In recent weeks, progressives have pressured lawmakers to adopt a tougher stance toward Trump and join ranks with the millions of protesters who marched over inauguration weekend.
The two top-ranking Democrats in Washington, Chuck Schumer in the Senate and Nancy Pelosi in the House, have both signaled an openness to working on legislation with Trump. Last week, protests formed outside Schumer’s home in Brooklyn. And among progressive activists online, Pelosi was met with vehement push-back after saying the party has a “responsibility to the American people to find our common ground.”
“Elected Democrats are stuck struggling to keep ahead of the anger that the base is feeling right now,” said Manley, the former Reid adviser. “It's very palpable.”
Trump speaking to troops Monday in Tampa, Florida.
Susan Walsh / AP
President Donald Trump on Monday falsely claimed the "dishonest press" has failed to report on terrorist attacks, asserting the media deliberately ignores attacks for unspecified "reasons."
“All across Europe you’ve seen what happened in Paris and Nice,” Trump said in a speech to troops at MacDill Air Force Base in Florida. “All over Europe it’s happening. It’s gotten to a point where it’s not even being reported. And in many cases the very, very dishonest press doesn’t want to report it.”
“They have their reasons, and you understand that,” he said without elaborating.
After questions were raised about his unsubstantiated claim, the White House released a long list of attacks — the majority of which have been extensively covered by major US news organizations.
The list was distributed to news outlets Monday evening and includes 78 attacks it described as "executed or inspired by" ISIS. The White House said most of the incidents didn't get adequate media coverage, though it did not specify which ones. But contrary to Trump's claim, the majority of the incidents on the White House list were in fact reported by western media.
The attacks on the list fall into two general categories:
1. High profile attacks that received massive amounts of media coverage.
The White House list includes incidents such as the 2015 San Bernardino attack that left 14 people dead. BuzzFeed News produced dozens of stories about that attack, many of which were updated scores of times by teams of journalists. Most other major US news organizations — CNN, the New York Times, etc. — adopted a similar strategy, resulting in hundreds of US news stories about the incident. The Los Angeles Times even won a Pulitzer Prize for its coverage.
Many of the other attacks on the list follow a similar pattern. For example, the list includes attacks in Paris against the satirical newspaper Charlie Hebdo, in January of 2015, and against multiple targets, in November of 2015. The later attack killed nearly 200 people at multiple locations.
Security forces secure the area near the Bataclan theater in Paris on Nov. 13, 2015.
Christian Hartmann / Reuters
Western news organizations mobilized entire teams after these incidents and collectively wrote thousands of news stories.
2. Smaller attacks — that also received coverage.
Not every incident on the list resulted in scores of injuries and deaths. The list includes, for example, a 2015 incident during which four people at the University of California, Merced were wounded by a man with a knife.
Investigators collect evidence in Garland, Texas, after a May 4, 2015, attack.
Brandon Wade / AP
The White House did not point to any attacks on the list that supported Trump's contention that terrorism is "not even being reported." BuzzFeed News researched all 78 incidents on the list and found western news coverage for all but seven of them. The other seven were likely covered as well, but the White House provide too little information to narrow them down.
The abundant, easily accessible news coverage about the attacks on the list leaves many unanswered questions about what Trump was talking about and why the White House indicated most events on the list deserved even more attention.
Carlos Barria / Reuters
WASHINGTON — Melania Trump has settled her defamation lawsuit against a Maryland blogger who published claims — which Trump denied — that she once worked as a "high-end escort" and suffered from a mental breakdown during the presidential campaign.
Trump's lawyers said in a statement that blogger Webster Tarpley "agreed to pay her a substantial sum as a settlement," but details of the settlement are unknown.
"The First Lady of the United States has settled her lawsuit against Webster Griffin Tarpley of Maryland," attorney Matthew Blackett said in a statement. "Mr. Tarpley has issued the attached retraction and apology to Mrs. Trump and her family, and agreed to pay her a substantial sum as a settlement."
Word of the settlement comes a day after Trump refiled a $150 million defamation lawsuit in New York against Mail Media Inc., which she claims was responsible for publishing a separate article on the Daily Mail's US website that also included allegations that she worked as an escort.
Trump's lawyer, Charles Harder, declined to comment about the settlement. Harder previously represented Terry Bollea, aka Hulk Hogan, in his successful defamation lawsuit against the now-defunct website Gawker. A lawyer for Tarpley was not immediately reached on Tuesday morning.
Tarpley, who published the allegations about Trump on his personal website Tarpley.net on August 2, 2016, issued a retraction and apology that was provided by Trump's lawyers. He had already retracted the article before Trump sued him in September.
A judge in Montgomery County, Maryland, ruled on Jan. 27 that Melania Trump could proceed with her defamation case, rejecting arguments from Tarpley's lawyer that Trump failed to show that he published the article with "malicious intent" or that the claims rose to the level of defamation, since he was just reporting rumors.
Trump originally sued Mail Media as part of the same case against Tarpley. The Maryland judge dismissed Trump's claims against Mail Media, finding that she failed to show the case had enough ties to Maryland for the court there to have jurisdiction. Trump on Monday filed a new version of the lawsuit against Mail Media in New York Supreme Court.
Trump is alleging that because of the Daily Mail article, she suffered "multiple millions of dollars" in economic damages because of the lost value to her brand. The article "impugned her fitness to perform her duties as First Lady of the United States," the complaint states.
Trump "had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which plaintiff is one of the most photographed women in the world," her lawyers wrote in the New York complaint.
According to statements made in court by lawyers in the Maryland case last week, Trump is also suing the Daily Mail's publisher in London.
U.S. military prison at Guantanamo Bay, Cuba
Handout / Reuters
WASHINGTON — When President Trump lashed out at the federal judge in Seattle who blocked enforcement of his travel ban last week, Trump invoked the threat of terrorism. If “something happens,” he tweeted, the judge was to blame.
The US Court of Appeals for the Ninth Circuit will hear arguments Tuesday afternoon about whether to lift US District Judge James Robart’s Feb. 3 order putting Trump’s travel ban on hold. Echoing Trump’s tweets, one of the US Department of Justice’s arguments is that Robart was wrong to “second-guess” the executive branch’s decisions about national security.
Although it’s true that judges tend to defer to the political branches to decide what’s necessary to protect national security, they’ve pushed back against the notion that they have no role at all.
The state attorneys general challenging Trump’s executive order on immigration point to earlier cases involving detainees at the US military facility at Guantánamo Bay, Cuba, in response to the government’s national security argument. In the late 2000s, a separation-of-powers showdown about whether detainees could go to US courts to challenge their detention reached the US Supreme Court. In 2008, a majority of the justices found that they could.
Justice Anthony Kennedy wrote the opinion in the case, Boumediene v. Bush. “Liberty and security can be reconciled,” he wrote, “and in our system they are reconciled within the framework of the law.”
“Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the nation's present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching,” Kennedy wrote.
The states challenging Trump’s travel ban cited the Boumediene decision to show that “courts routinely review executive decisions with far greater security implications than” Trump’s executive order. The order halted travel from seven countries and suspended the US refugee program. Trump couched it in terms of national security, saying the temporary travel ban was necessary to give agencies time to review immigration processes to make sure terrorists couldn’t enter the United States.
The Justice Department disputed the comparison to the Guantánamo Bay cases, arguing in papers filed on Feb. 6 in the Ninth Circuit that the Supreme Court ruled in 2004 that Guantánamo Bay detainees had rights under the constitution or federal law to challenge their detention. Individuals affected by Trump’s executive order were in a different legal position, the government said.
“Those cases do not override the longstanding rule that aliens outside the United States have no right or interest in their admission to the United States protected by the Due Process Clause … or the rule that non-immigrants do not have a liberty or property interest in the retention of a visa,” the Justice Department argued.
In the Boumediene case in the Supreme Court, four justices dissented. Chief Justice John Roberts Jr. wrote in one dissenting opinion that by giving US courts jurisdiction over Guantánamo Bay detainee cases, the court had shifted responsibility for “sensitive foreign policy and national security decisions from the elected branches to the federal judiciary.”
The late Justice Antonin Scalia wrote in a separate dissenting opinion that “how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.” He wrote later: “The nation will live to regret what the court has done today.”
Steven Vladeck, a professor and national security law expert at the University of Texas School of Law, said that despite fears that the US civilian courts weren’t equipped to delve into national security issues, they successfully handled Guantánamo Bay detainee cases after the Boumediene decision. And there’s no indication that it led to increased threats against the United States, he said.
“It’s one thing to say we should be deferential, it’s another to say, we shouldn’t scrutinize at all because of national security,” Vladeck said. Vladeck is part of a group of law professors who filed a brief on Monday in the Ninth Circuit in the travel ban case in support of the challengers, arguing that the courts did have authority to review executive branch decisions on immigration policy.
There have been other, less high-profile cases in which federal judges asserted their authority to review actions by the executive and legislative branches that touched on national security, over objections from the Justice Department.
In April 2014, US District Judge Rosemary Collyer dismissed a civil lawsuit brought against the federal government by the families of two US citizens, one of whom was reportedly an al-Qaeda leader, killed by US drone strikes in Yemen. But before dismissing the case, Collyer found that she did have authority to consider the case, rejecting arguments to the contrary from the Justice Department.
“The powers granted to the executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life without due process and without any judicial review,” Collyer wrote.
In another case, US District Judge Gladys Kessler — one of Collyer’s colleagues in the US District Court for the District of Columbia, a major forum for terrorism-related cases — in October 2014 ordered the unsealing of videos that showed a Guantánamo Bay detainee being forcibly fed while he was on a hunger strike. The government argued that the court couldn’t question the executive branch’s authority to classify national security information, and that releasing the tapes could incite violence against the United States.
“What the government is really saying is that its classification system trumps the decisions of the federal courts as to the public's access to official court records; in other words, the executive branch (in this case, the military) purports to be a law unto itself,” Kessler wrote in an October 2015 ruling rejecting the government’s argument that she should reconsider her unsealing order.
The government is appealing Kessler’s decision in the DC Circuit, which heard arguments in September but hasn’t ruled yet.
WASHINGTON - It was 6 a.m. on Monday morning and part-time Trump-whisperer and critic Joe Scarborough had a topic he was itching to talk about on his MSNBC show Morning Joe.
“This Steve Bannon thing just keeps coming up. People are saying 'president Steven Bannon.' We saw it on Time magazine last week. I mean, what staffer have you ever known that is in the job for a week and a half and is on the cover of Time magazine?" Scarborough asked co-host Mika Brzezinski, before airing a clip of the president's chief strategist Bannon on Saturday Night Live played by the grim reaper, in a skit where Trump does his bidding.
"Ooo wow," Brzezinski said after the clip.
"It’s astounding that this soon into a new administration, I don’t know. Maybe Bannon’s calling all the shots?" Scarborough replied.
Less than an hour later, Trump had this to say.
The latest evidence that Trump wakes early and watches cable news could also be bad news for Bannon, whose stratospheric rise to power in the Trump administration has been followed by clear signs that the president is uncomfortable with his growing public clout.
After The Washington Post reported that Trump inquired to aides about the unusual Time cover for an administration staffer, an explosive New York Times story detailed that "for the moment, Mr. Bannon remains the president’s dominant adviser, despite Mr. Trump’s anger that he was not fully briefed on details of the executive order he signed giving his chief strategist a seat on the National Security Council (NSC)," which the Times said was a greater source of frustration to Trump than the ongoing travel ban fallout.
At the time, the NSC appointment was seen as yet another sign that Trump was out to roil the establishment — this time seemingly demoting two top intelligence and military officials, while elevating Bannon. But now that's unclear.
And a reason that Bannon will not likely willingly recede until the heat on him cools is because he appears set on hammering home his agenda early, with the Times reporting that he has told allies he and senior policy advisor Stephen Miller have a brief window to push through their vision of Trump’s economic nationalism.
Much has been made about Trump reveling in having his staffers fight it out amongst themselves, with none of them ever amassing too much power, but never before has one dared eclipse Trump himself.
And the media can’t get enough of Bannon. On their podcast, former Obama administration officials Jon Favreau and Tommy Vietor quipped that aides in the past had flown too close to the sun like Karl Rove under George W. Bush in courting attention and influence, but none as fast as Bannon had.
“The reason I say Bannon is flying too close to the sun is because he’s making Trump look weak and checked out,” Vietor told BuzzFeed News.
But a source close to the administration said that Trump trusts Bannon and sees him as an expert on the populist sentiment that he championed on the campaign trail and is best positioned to implement that economic nationalist vision. On a big picture level, the source said, Trump and Bannon are still on the same page and Trump as well has shown no signs of backing down from the broad confrontational strokes of the refugee ban.
Pablo Martinez Monsivais / AP
Still, miscalculations from the fast-moving Bannon have opened up room for chief of staff Reince Priebus to take the reins at the behest of Trump who after a tumultuous early going reminded everyone that everything goes through Priebus.
(He’s already instituted changes to loop Trump in on executive orders earlier in the process and instituted a 10-point checklist for the release of any new initiatives, the New York Times reported.)
Priebus also has deep ties to the Washington Republicans who can move — or embarrassingly scuttle — policy and political initiatives.
Kevin Madden, a former senior advisor on Mitt Romney's presidential campaigns, said Priebus has a lot of experience when it comes to finding consensus among many diverse opinions.
"He spent the last few years wrangling the competing interests of 168 committee members, 50 state chairs and probably a few hundred elected officials and political consultants, all of whom probably thought they had the one, big, right answer to every problem," Madden said. "He managed all of that by looking at the big picture and serving the larger interest."
Afp / AFP / Getty Images
WASHINGTON — A federal appeals court held a fast-paced telephone hearing on Tuesday over whether President Trump's refugee and travel ban executive order should remain on hold while the legality of the order is hashed out in the courts.
All three judges from the US Court of Appeals for the Ninth Circuit expressed skepticism of the Justice Department's arguments for reinstating the ban, although one — Judge Richard Clifton — also expressed a fair amount of skepticism about the broad scope of the trial court order halting enforcement of the ban.
Judge Michelle Friedland, who presided over the hearing, said at the conclusion of the arguments that the judges, understanding the importance of the case, would issue a decision as soon as possible. The court earlier had said that a decision was not to be expected on Tuesday night but would "probably" come this week.
The hearing was over whether the appeals court should issue a stay of — or, put on hold — US District Judge James Robart's Feb. 3 temporary restraining order (TRO) that halted enforcement of key provisions of the Jan. 27 executive order: the ban on travel to the US from seven majority-Muslim countries and the halt to the refugee program.
Judges William Canby and Michelle Friedland, along with Clifton, heard the arguments over the Justice Department's request to issue a stay of Robart's order pending the outcome of an appeal of the case. Judges Canby and Friedland earlier denied the Justice Department's request for an immediate stay of the TRO, but set a more full briefing schedule that led to Tuesday's arguments.
August Flentje, from the Justice Department, argued for the federal government, facing quick questions about the evidence the government was able to provide to back up the need for the executive order and the harms the federal government would face if the TRO was kept in place while the legal challenges to the executive order were heard. The case before the judges on Tuesday is one of more than a dozen pending in federal courts across the country.
Flentje pointed to statements included in the executive order about "numerous" people convicted of "terrorism-related crimes" in the US and "deteriorating conditions" abroad that could lead to terrorism in the US, leading to pushback from Friedland, at which point Flentje noted that it was congressional and executive branch determinations regarding "countries of concern" that led to the seven countries included in the visa portion.
Clifton pressed back, though, calling that alleged evidence "pretty abstract" and asking whether there was evidence of "real risk." Flentje said that the president decided there is real risk, leading Friedland down a series of questions about whether the executive order is unreviewable by the courts — a possibility raised earlier by the Justice Department in its filing before the appeals court.
"Yes," Flentje said, while acknowledging that there are constitutional limits, but asserting that the review should be limited to the "four corners" of the order itself — and only by those with legal standing to do so. The federal government has argued that Washington lacks standing to bring claims — particularly as they relate to refugees, people who the federal government notes have not yet been in the US.
Later, Canby attempted — with some difficulty — to get Flentje to address whether an explicit "Muslim ban" could be reviewed by courts. Flentje at first declined to answer, saying that Trump's executive order is not a Muslim ban. After some back and forth, however, Flentje partially answered, saying that such a ban could be challenged by a US citizen with a sufficient connection who would be affected by such a ban.
Later, during his rebuttal argument, Flentje added that, specifically, such a ban could be challenged as a violation of the Establishment Clause.
For the state of Washington's solicitor general, Noah Purcell, who argued for the states, he began by arguing that the federal government's request shouldn't even be at the appeals court now.
The order issued by Robart was a TRO, Purcell noted, which is not generally appealable. This, he explained, is different than if it had been a full preliminary injunction, because that order from the court would contain more detailed reasoning to be considered on appeal. When the judges pressed back on the fact that the effect of the TRO was broad — and, as Clifton pressed, "Why should we care" about the technical name on the injunction? — Purcell said that if the appeals court did consider the government's request, it should, at the least, provide a full opinion from which the Supreme Court could consider the matter on appeal.
Purcell then pressed hard on the point that, in the states' view, the Justice Department presented no evidence of "irreparable harm" that it would face if the TRO remains in effect during the litigation — and added that it was the executive order itself that "caused the irreparable harm."
The most skeptical questions for Purcell came from Clifton and addressed the scope of Robart's order, which shut down most of the visa and refugee bans under the executive order. He asked how many people from Washington are affected by the bans, and why the TRO shouldn't be limited to those clearly affected by the claims raised by Washington. Purcell responded that such a limited solution wouldn't answer the states' broader constitutional claims.
Following up on Canby's "Muslim ban" question and the states' argument that the ban, nonetheless, was based in religious discrimination, though, Clifton told Purcell that he was struggling with the religious animus argument. Specifically, he said that his quick math showed that the percentage of all Muslims worldwide who are living in the seven countries affected by the ban was low, perhaps around 15 percent.
Purcell said that he hadn’t done the math, but that to prevail, the states didn’t have to show that all Muslims were affected. Rather, they just had to show that the executive action was motivated by a desire to stop Muslims from entering the United States.
Purcell pointed to statements that Trump made on the campaign trail calling for a ban on Muslim immigration. Is the executive order at issue that Muslim ban, Clifton asked. No, Purcell said, it wasn’t that broad.
Flentje, during his rebuttal argument, denied that the executive order discriminated on the basis of religion. He said it was “extraordinary” for the court to interfere with the president’s national security determination based on “some newspaper articles,” and this was instance of “troubling” second-guessing of the president.
Clifton, though, asked if Flentje denied that the president and his advisers had made the statements referencing a Muslim ban that were cited in the case. No, Flentje said, but he pointed out that Robart had already said he wasn’t going to look at campaign statements.
Clifton said that the timing might affect the weight given to the statements, but it doesn't change whether they were said or not.
Over the past two days, the states of Washington and Minnesota — who are suing the federal government over the order — and the Justice Department, as well as several outside groups, filed briefs with the court over the statutory and constitutional questions at issue in the challenge to Trump's order.
The court provided an audio livestream of the arguments — providing the rare chance for the public to listen in real time to the arguments over the authority of the president, and the courts, on questions relating to immigration and national security issues.
There were approximately 137,000 connections to the court's audio livestream during the arguments — a number that did not count those who listened through the audio feed provided to CNN — according to a public statement provided by the court's assistant circuit executive, David Madden, after the arguments.
The appeals court generally provides a video livestream of arguments, but the quick turnaround of scheduling for Tuesday's arguments meant that the hearing took place over the phone. Friedland, who presided over the arguments, was in San Jose, California; Canby was in Phoenix; and Clifton was in Honolulu.
Listen to the arguments:
Pool / Getty Images
Donald Trump has only been president for 19 days, but already he is complaining that it's taking longer to confirm his full cabinet than any other in history, even though those for his predecessors weren't fully in place for months.
Trump tweeted Tuesday evening that it is a "disgrace" that his "full Cabinet is still not in place" and that the delay is the longest "in the history of our country."
The overall pace of getting a cabinet has been slower for Trump than other recent presidents, and he had fewer nominees confirmed on inauguration day than Obama, George W. Bush, or Clinton, according to the Washington Post. But it's actually months too early to say if Trump really is facing the longest delay in US history before getting a full cabinet.
After President Obama took office in January 2009, for example, Hilda Solis wasn't confirmed as Labor Secretary until February 24 — more than a month after inauguration day.
Other nominees took even longer. After two other nominees withdrew their names, Gary Locke finally became Obama's secretary of commerce on March 24, 2009. And Kathleen Sebelius became Health and Human Services secretary on April 28, 2009, after Tom Daschle, Obama's first choice, pulled out.
During Bill Clinton's presidency, Janet Reno wasn't confirmed as attorney general until March 11. In 1989, George H.W. Bush had four cabinet nominees who weren't confirmed until March.
The reasons for the delays varied, with some nominees withdrawing their names over various conflicts. One of Bush's nominees was actually voted down by the Senate — a fate Trump's nominees are unlikely to face with a Republican controlled congress. Still, Democratic senators, such as Elizabeth Warren, have been pushing to stall some of Trump's nominees for as long as possible.
Still, whatever the cause — which Trump did not discuss or mention on Twitter — multiple other presidents also did not have full cabinets in place 19 days into their first terms.
Alex Wong / Getty Images
WASHINGTON — The president's nominee for the Supreme Court said Wednesday that President Trump's recent attacks on the judiciary are "disheartening" and "demoralizing," the team helping the White House with the nomination confirmed to BuzzFeed News on Wednesday.
In a meeting with Sen. Richard Blumenthal, first reported by CNN, Judge Neil Gorsuch used those two words to describe Trump's multi-day attacks on courts and specific judges that have heard challenges to his recent travel and refugee ban executive order.
"Behind closed doors, Judge Gorsuch expressed disappointment with President Trump’s attacks on the judiciary, but a Supreme Court Justice must prove that he has the courage and independence to stand up to a President in public. I asked Judge Gorsuch to make that statement publicly, and he declined," Blumenthal said in a statement.
"As the nominee of a President who has viciously attacked the independence of the judiciary and declared multiple litmus tests for justices, Judge Gorsuch has a special responsibility to reassure the American people that he will be an open-minded and independent jurist," Blumenthal added. "If he wants the American people to believe that he is truly independent, Judge Gorsuch must tell them in no uncertain terms that President Trump’s attacks are not just disappointing – they are abhorrent and destructive to our Constitutional system – and he must condemn them publicly."
In a tweet on Thursday morning, Trump tried to discredit Blumenthal by saying he misrepresented what Judge Gorsuch told him.
The judge's comments came just more than a week after Trump announced that Gorsuch, currently a judge on the US Court of Appeals for the Tenth Circuit, would be his nominee for the vacancy on the Supreme Court and five days after US District Judge James Robart put much of the ban on hold.
Specifically, CNN reported, Gorsuch took umbrage at Trump's tweet referring to Robart as a "so-called judge."
Trump continued his attacks throughout the day and in the days since.
On Feb. 5, Trump appeared to place blame for any future terror-related attacks on Robart.
The US Court of Appeals for the Ninth Circuit heard arguments Tuesday over whether to keep Robart's temporary restraining order in place while the case is litigated, leading Trump on Wednesday to say, "I watched last night in amazement and I heard things that I couldn't believe … courts seem to be so political." He added, of Robart's order, "Right now we are at risk because of what happened."
Gorsuch's comments, as incomplete as they are, are significant due to the rarity of a judge speaking out on such political issues. Even in the midst of Trump's attacks on US District Judge Gonzalo Curiel, no federal judges spoke out
In fact, Justice Ruth Bader Ginsburg apparently is the only federal judge — before Wednesday — to directly speak out against Trump's comments or actions.
"He has no consistency about him," Ginsburg said at one point over the summer. "He says whatever comes into his head at the moment."
Evan Vucci / AP
Amid Donald Trump's bitter and long-running crusade against the media, and in some cases the truth, his official spokesman defended the president's controversial travel ban by repeatedly citing an Islamic terror attack in Atlanta that never happened.
White House Press Secretary Sean Spicer mentioned the Georgia capital as the site of a terror attack three times in recent weeks. The first happened on Jan. 29, while defending the president's travel ban in an ABC interview he asked, "what do we say to the family who loses somebody over a terroristic [sic], to whether it's Atlanta or San Bernardino or the Boston bomber?"
Referring to the attackers, Spicer added, "each of whom had gone out to a country and then come back."
A day later, while appearing on MSNBC, Spicer cited an attack in Atlanta again, saying, “too many of these cases that have happened, whether you’re talking about San Bernardino, Atlanta, they’ve happened, Boston.”
Spicer mentioned Atlanta a third time later that day during a White House press briefing where he vigorously defended Trump's controversial travel ban. “I don’t think you have to look any farther than the families of the Boston Marathon, in Atlanta, in San Bernardino to ask if we can go further," he said.
Pablo Martinez Monsivais / AP
Despite his claims, there has never been an Islamic terror attack in Atlanta, and none of the incidents mentioned involved attackers from countries listed on Trump's travel ban.
"We have no record of an Islamic attack in the City of Atlanta," Atlanta police spokeswoman Elizabeth Espy told CNN.
Though a pipe bomb was detonated at the 1996 Olympics in the city, killing two people, that attack was the work of Eric Robert Rudolph — an American from Florida and North Carolina who was angry about abortion and homosexuality. Moveover, Rudolph did not travel to a foreign country to become radicalized.
Spicer's repeated comments about Atlanta were first noticed by the Daily Beast.
The White House did not respond to a BuzzFeed News request for clarification.
Spicer's references to a fictional attack in Atlanta came as Trump continued waging a battle with the media in which he accused news organizations of promoting agendas and false information.
The president has repeatedly tweeted about fake news, for example, and this week the White House released a list of terror attacks it said deserved more coverage — even though almost all of them were extensively covered by news organizations all over the world.
In one instance, Trump even seemed to suggest that reality should bend to his will when he tweeted that "any negative polls are fake news."
Spicer's comments about Atlanta came a week after senior White House adviser Kellyanne Conway defended his claims about the inauguration, describing them as "alternative facts."
It was not immediately clear if the existence of a terror attack in Atlanta was also an alternative fact.
Scott Olson / Getty Images
An American Indian tribe challenging the Dakota Access pipeline is racing to court to stop further construction on the project after the US Army Corps of Engineers granted the approvals needed for the pipeline to go through federal land.
The Army Corps on Wednesday granted the easement to Dakota Access LLC, the company building the pipeline. In a series of court papers filed just after 3 a.m. on Thursday, the Cheyenne River Sioux Tribe — one of two tribes that have been challenging the pipeline in court since last year — asked a judge to intervene.
The tribe is asking for a temporary restraining order immediately stopping any construction, a preliminary injunction requiring the Army Corps to withdraw the easement, and permission to amend the lawsuit to include a claim under the federal Religious Freedom Restoration Act. The tribe argues the Army Corps failed to consider the "substantial impact of this project on tribal members’ free exercise of their religion," since it would be built through a site they believe is sacred.
"The granting of the easement and resulting construction activity violates the Tribe’s and its members’ Constitutional rights, and will result in immediate and irreparable harm to the Tribe and its members before this Court will be able to rule on the merits of this claim," the tribe argued in its request for a temporary restraining order.
The Obama administration halted construction in December, and called for additional consideration of the project's environmental impact. President Trump last month reversed course, instead calling for an expedited review of the project. After the easement was granted on Wednesday, a spokeswoman for the pipeline company told BuzzFeed News, “We plan to begin drilling immediately."
In court earlier this week, a lawyer for Dakota Access LLC told the judge that it would take about 60 days to finish building the pipeline once construction resumed, and about 80 days until oil is flowing through it.
Here are the documents filed by the Cheyenne River Sioux Tribe.
Motion for a temporary restraining order:
Motion to amend the lawsuit:
Motion for a preliminary injunction:
Syrian refugee Baraa Haj Khalaf, shortly after arriving at O'Hare International Airport on Feb. 7, 2017, in Chicago.
Joshua Lott / AFP / Getty Images
WASHINGTON — A federal appeals court denied the government's request to allow it to enforce President Trump's travel and refugee ban executive order while the case challenging the ban makes its way through the courts.
"[T]he Government has failed to establish that it will likely succeed on its due process argument in this appeal," the US Court of Appeals for the Ninth Circuit ruled in an unsigned, "per curiam" order. None of the three judges hearing the case dissented from the decision.
Specifically, the court held that the Justice Department did not show it is likely to succeed on its defense of claims raised by Washington and Minnesota about the lack of due process provided to lawful permanent residents — as well as to "other persons who are in the United States, even if unlawfully" — under the president's executive order.
Because the court held in favor of the states on that point, it did not rule on the religious discrimination claim raised in the case. (At the arguments before the Ninth Circuit earlier this week, Judge Richard Clifton expressed skepticism about the religious discrimination claim.)
Notably, it was in this portion of the decision that the appeals court addressed the question of whether the states could introduce Trump's various comments "about his intent to implement a 'Muslim ban.'"
The court noted that "[i]t is well established" that such evidence can be introduced in equal protection and Establishment law challenges — likely a signal to the Justice Department, which argued against its inclusion, and to other courts about the Ninth Circuit's view of the matter. Nonetheless, to the extent the language goes beyond a restatement of existing law, the language is not likely binding precedent, given that it was not essential to the ruling.
The court then proceeded to discuss the other portion of the ruling. "The Government has not shown that a stay is necessary to avoid irreparable injury," the court held, secondarily. "By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple 'other parties interested in the proceeding.'"
Failing to meet either of those standards, the three-judge panel ruled — in an opinion that rejected nearly all of the Justice Department's arguments in defense of the ban — that US District Judge James Robart's Feb. 3 order halting enforcement of major parts of the ban would remain in place. In addition to Clifton, Judges William Canby and Michelle Friedland participated in the consideration of the Justice Department's request.
The Justice Department now could seek a stay of Robart's order at the Supreme Court, a move that would start with a request made to Justice Anthony Kennedy, who could then refer the matter to the full court. President Trump's immediate reaction on Twitter suggested that further action would be forthcoming.
"The Justice Department is reviewing the decision and considering its options," Justice Department spokesperson Nicole Navas said in a statement.
In a news conference, Washington Attorney General Bob Ferguson said, "Bottom line, this is a complete victory for the state of Washington. We are a nation of laws. And as I have said, as we have said, from day one that those laws apply to everybody in our country, and that includes the president of the United States."
The Feb. 3 order in the lawsuit brought by Washington and Minnesota had led the federal government to begin allowing travel from the seven affected Muslim-majority countries and allowing the refugee program to continue.
The Justice Department quickly filed a request with Ninth Circuit, asking the trial court's order to be stayed, or put on hold, while the merits of the case could be hashed out in court. The appeals court heard arguments over the government's request on Feb. 7. The three-judge panel was skeptical of the government's request, with one judge from the panel also expressing skepticism of the broad scope of Robart's order.
In Thursday's decision, the court first held that Robart's order was appealable. The trial court had issued a temporary restraining order, which generally is not appealable. Washington's solicitor general, Noah Purcell, argued that the case should be sent back to the trial court so that Robart could rule more fully on a preliminary injunction, which is appealable.
The court rejected that argument, noting "the unusual circumstances of this case" — including the fact that the Justice Department has argued "emergency relief is necessary to support its efforts to prevent terrorism" — and proceeding to hold that the TRO "should be considered to have the qualities of a reviewable preliminary injunction." (Soon after the ruling, Washington filed a letter with Robart's court saying that, due to the appeals court decision, the state believed that the district court's planned consideration of the matter would not proceed.)
More broadly, though, the appeals court rejected the more pressing argument from the federal government — argued by Justice Department lawyer August Flentje — that the executive order is unreviewable by the courts.
"There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the court ruled. "In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."
The court preliminarily found that Washington had standing to bring the case — a legal argument about whether the plaintiff in a case can point to a particularized injury resulting from the action challenged. The court found that the states had standing due to their claim that they are harmed as "operators of their public universities."
This is a developing story. Please check back at BuzzFeed News for the latest news.
It’s easy enough to find editors these days who say they saw Donald Trump coming, hard to find ones who are telling the truth about that. By my estimation perhaps the only one who really did is R. Emmett Tyrrell, the venerable founder and editor of the American Spectator, and perhaps the only man to get marginalized in the right-wing journalism of the 1990s for being too hard on the Clintons.
Tyrrell is a charismatic, spry, and unaccountably handsome 73-year-old whose mainstream political influence peaked during Ronald Reagan’s first term. He’s still got a pair of letters from Reagan hanging above the stairs, next to a photograph of his old friend and Spectator contributor Tom Wolfe. His roots in journalism are, he likes to say, “athletic” — he was inspired by the coach of his University of Indiana swim team to found a conservative magazine, and moved it from Bloomington to Washington in 1985.
Tyrrell’s Spectator was a hipster National Review, his generation’s Jacobin: It was where you’d read everyone from George Will to Bill Kristol back when nobody had heard of either. Tyrrell says he introduced the two. He has a gracious manner and a scabrous prose style that is the only thing about him that reminds you of Donald Trump: He just always goes there. (In his latest book, The Death of Liberalism, he refers to Monica Lewinsky as the “fat intern.”) He was the first of the old-line conservatives to make common cause with the Jewish ex-Marxists who became the neocons. And he brought a new, mocking tone to a conservative movement that had relied more on sheer outrage: “His greatest scoop was the discovery that liberalism had become laughable,” recalled Seth Lipsky, who worked on the Wall Street Journal's opinion pages in the 1980s.
But Tyrrell was ready for 2016 most of all because Tyrrell’s career has been defined by the Clintons. His magazine broke one of the biggest stories of the 1990s, the allegations that Arkansas state troopers had arranged liaisons for Gov. Bill Clinton. A young reporter named David Brock broke the news under the headline “His Cheatin' Heart” in December of 1993, and that story was a key part of the investigations of Clinton’s personal Arkansas world that eventually led to his impeachment. But even as he drove the spirit of 1990s anti-Clintonism, Tyrrell reached what seemed like the end of the political line. He allowed rich conservatives to funnel money for the “Arkansas Project” fishing expedition through the Spectator, and gave space in his pages to the fantastical gun- and drug-running yarns of a former trooper named L.D. Brown, over skepticism even of anti-Clinton allies at places like the Wall Street Journal editorial page. Tyrrell wound up under investigation for interfering with a federal investigation by paying sources (no charges were brought), and losing control of the magazine.
Byron York wrote the publication’s obituary in The Atlantic in 2001, under the headline, “The Life and Death of The American Spectator.”
At the heart of the story, York wrote, was that Tyrrell and his allies had been “possessed by a self-destructive brand of opposition to Bill Clinton, and in their desire to knock the president out of office they ended up hurting themselves more than him.” This was the story of “the downfall of Tyrrell, a talented polemicist who craved acceptance in the world of Washington but allowed his obsession with Clinton to ensure that he would become increasingly alienated from that world.”
But the obituary was premature. Tyrrell would get his magazine back, but it never regained its centrality, and while he retained allies in the media and political class — incoming Attorney General Jeff Sessions, he says, is his best friend on Capitol Hill — he was not the sort of player during the Bush years he had been during the Reagan administration. In David Frum's 2012 roman à clef about the conservative movement, Patriots, he appears as the cynical, dandyish journalist in the service of an empty ideology. But he never went away, and his galas continued to draw the conservative elite. And he never stopped being obsessed with the Clintons.
R. Emmett Tyrrell Jr. in his home in Alexandria, Virginia, on Jan. 24, 2017.
T.j. Kirkpatrick for BuzzFeed News
So why was Bob Tyrrell the one who got it right? What about his strain of conservatism, and his roots in the dark conspiratorial anti-Clinton politics of the 1990s, let him see something hundreds of other conservative writers and thinkers missed? I visited him at his gracious Old Town Alexandria home to ask him that question as he sat under a portrait of Lincoln (“I brought him to this confederate community”), a Make America Great Again hat, but no computer, on the secretaire.
Tyrrell placed his bet on Trump way back in 2013, after Trump spoke at the Spectator’s annual Robert L. Bartley Gala. Trump was there to receive the T. Boone Pickens Award for Entrepreneurship.
“He was not the main speaker that night. You know who the main speaker was? Cruz,” Tyrrell laughed. “Cruz.”
Trump’s speech could have been given yesterday: warnings that America is being “scoffed at by the world” and incredulous mockery of Obamacare. Also, the familiar tics: praise for the old Reagan hand Jeffrey Lord, who introduced him, who wrote some articles that were “so nice” Trump had called him; a shout-out to the guy from the New York Post; stories about Ed Koch.
Tyrrell found him charming and witty. And while most of the small-government warriors scoffed, he found him conservative.
“I looked at Donald and I didn’t see an enemy,” he recalled. “When I look at Hillary Clinton, I duck. I mean — where’s the grenade going to come from? She actually tried to put me in jail. She and her lovely husband.
“I thought Donald Trump was a part of America,” Tyrrell continued. “You can’t imagine a guy like that coming out of France. I can’t even picture him as coming out of Great Britain. He’s really a part of America.”
The Spectator’s admiration for Trump began in June 2013: Tyrrell published a column by Lord, one of Tyrrell’s closest friends, who had moved back to Harrisburg, Pennsylvania, to care for his aging mother. The column responded to a sneering Wall Street Journal piece on Trump, and warned conservatives never to ignore him.
“Donald Trump, like Ronald Reagan, is an American Original,” Lord wrote. “Let Donald Trump be Donald Trump. Which is to say, not only don’t ignore Donald Trump but rather pay attention to him. Pay attention to someone who spends 24/7 making the American dream the American reality.”
Trump called Lord to thank him, and they began to talk occasionally. He introduced Trump at the magazine’s gala, and Trump took to Tyrrell as well.
In 2014, the Donald J. Trump Foundation (best known now for spending the money of people other than Donald Trump) gave the Spectator’s foundation $25,000, a “generous thing to do,” says Tyrrell, but “you’ve got give me a lot more than $25,000 to get me to admire you.”
Despite Tyrrell’s Old Town home and his deep roots on the right, both he and Lord say the Spectator saw Trump coming because Tyrrell’s an outsider.
“It would not have been impossible for people other than Bob to do this but they were so caught up in the Beltway way of doing things,” speculated Lord.
“There’s something that makes, I think, people in power, or who think they’re in power — it makes their brain atrophy,” said Tyrrell of his conservative former friends. (They are now “keeping their distance — and at this point in my life I don’t give a damn.”) “I mean look at the number of stupid things that have been said about Donald Trump,” he said.
Tyrrell did not come up, like Trump’s further-out supporters, on the nationalist wing of his party. Nor are his origins, like Sessions’, in the racialized politics of the white South. Tyrrell is, notionally, a mainstream conservative — worried that the Democratic Party was slipping toward “friendly fascism,” skeptical about government power. What he shares with Trump most of all is his fascination with dark, sometimes sexual, secrets. “The Death of Liberalism” misses no chance to pass on sexual comments about Democratic Reprobates: Clinton and Eliot Spitzer and the late Teddy Kennedy, sure. But the speculation on whether Eleanor Roosevelt masturbated sounds a bit like a 1940s Trump.
And of his candidate’s personal life?
“Well, I mean, it’s nothing compared to actually raping women,” he said. “I think [Trump and Clinton] are not comparable. It’s what some men do. He didn’t break the law on any occasion.”
In fact, he said, “Donald strikes me as pretty much a gentleman. I mean, he doesn’t drink. That probably keeps him out of a lot of trouble.”
Way back in the early 2000s, Bill Clinton paid a visit to the New York Post. He’d hated the paper’s cartoon depictions of him as a boxer-clad lecher. But he’d been courting Rupert Murdoch — his wife’s constituent — and after the visit, the cartoonist laid off that caricature.
Tyrrell never did, and perhaps the thing that Tyrrell had, the thing nobody else in Washington had, was a dark view of the Clintons that never went away, never even mitigated. While Republican senators were being charmed by Hillary Clinton, while old haters like Chris Ruddy and Richard Mellon Scaife were coming around to Bill, Tyrrell stayed in the fever swamps. In 2007, he published a scathing attack on Bill Clinton, The Clinton Crack-Up, full both of the 1990s sex scandals and of a theme of post-presidential influence peddling that surfaced last year. He still grumbles that not even the conservative press bothered reviewing it. But it turns out he was onto something. One of the great lessons of 2016 was how deep the suspicion and hatred of the Clintons in the 1990s ran, how little it took to revive it. Tyrrell says he was surprised, and pleased, to see Trump bring Clinton’s 1990s accusers to a press conference in St. Louis. Among them was Juanita Broaddrick, who accused Clinton of raping her (he denies it and was never charged with any form of sexual assault); Broaddrick told me she considers Tyrrell "a hero of the truth."
“It was a little weird to find it all over again, but it needed to be raised up all over again,” Tyrrell said. “Donald thought it needed to be raised up and he’s right. I mean Bill never paid the price.”
Maybe Clinton has paid it now. Tyrrell spent October, in part, on Trump’s jet for campaign stops in Florida and Texas, apparently unrecognized and unremarked by a generation of Trump watchers for whom “Troopergate” sounds like a particularly dank meme and for whom its author, David Brock, is a liberal lion.
The Trump campaign stops, with Trump ordering his plane to circle to give the crowd a show, sent Tyrrell back to April 1968, when Bobby Kennedy appeared at Indiana University.
“I’ve never seen such a great campaigner — him and that campaign,” Tyrrell said. “He was the greatest campaigner I’ve ever seen until I flew with Donald.” ●
Protesters stand in front of the United States Court of Appeals for the Ninth Circuit.
Josh Edelson / AFP / Getty Images
ALEXANDRIA, Virginia — The federal court challenges to President Trump's refugee and travel ban didn't stop just because one federal appeals court kept the ban on hold.
The morning after the administration took a hit from a federal appeals court, US District Judge Leonie Brinkema heard arguments over Virginia's request that she, too, issue a nationwide injunction blocking the part of the ban affecting travelers from seven majority-Muslim countries.
Brinkema, as was the case when the government argued earlier this week before the US Court of Appeals for the Ninth Circuit, came down hard on the lack of evidence the federal government had presented so far to justify the ban.
"There are all kinds of defects in the record at this point," Brinkema told Justice Department lawyer Erez Reuveni. "You haven't given us any evidence whatsoever."
A three-judge panel of the Ninth Circuit upheld a Seattle federal judge's order temporarily halting enforcement of sections of Trump's executive order that stopped travel from the seven countries and suspended the US refugee program. Shortly after the decision came down, Trump tweeted, "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"
But Reuveni told Brinkema on Friday that the Justice Department was still reviewing the ruling and hadn't decided what to do. "We may appeal, we may not," Reuveni said. "All options are being considered across the spectrum."
Asked about the Ninth Circuit's decision at a news conference on Friday afternoon, Trump didn't specify what action the administration would take. He said they would "do whatever is necessary to keep our country safe" and "continue to go through the court process, and ultimately I have no doubt that we'll win that particular case."
There are at least fifteen pending cases nationwide challenging the travel ban. In the case in Seattle at issue in the Ninth Circuit, US District Judge James Robart had previously set a schedule to go ahead with briefing on the next phase of litigation — but the Ninth Circuit also set a further appellate briefing schedule on Thursday night. What happens will depend, in part, on what the Justice Department decides to do next, but also on how all of the judges now involved in the case decide to proceed. A judge in Hawaii put a case there on hold as long as Robart's injunction is in effect, but briefing deadlines and hearings are being set in other cases.
In the US District Court for the Eastern District of Virginia, Brinkema pressed ahead with arguments on the commonwealth's injunction request. The Ninth Circuit doesn't cover Virginia — it includes seven western states, as well as Hawaii and Alaska — so Brinkema isn't bound by the legal reasoning from the appeals judges there, even if the effect of the circuit's order is nationwide.
Virginia Solicitor General Stuart Raphael argued on Friday that it made sense to move forward because it was better to have multiple courts weighing in on the travel ban, which presented "novel" issues. He compared the situation to when numerous federal courts examined state laws prohibiting same-sex couples' marriage rights. In those cases, judges were looking at different state laws, as opposed to the same federal law, but the varying opinions contributed to the broader development of the law, Raphael said.
Reuveni argued that Virginia failed to present evidence of specific individuals who would be immediately, irreparably harmed by the travel ban. Raphael pointed to information it submitted to the court about potentially hundreds of students and faculty at state universities from the seven affected countries who wouldn't be able to travel without knowing if they could return. Reuveni countered that this evidence was too speculative.
Virginia, like plaintiffs in other legal challenges, is arguing in part that the ban is rooted in discrimination against Muslims. Brinkema didn't decide that issue, but did say she thought there was "colorable" evidence that the ban may "bump into" the Establishment Clause of the First Amendment, which forbids religious discrimination by the government.
Brinkema said she also was struck by a declaration filed with the court signed by 10 former high-level diplomatic and intelligence officials — including three who served under Republican presidents — who said they were "unaware" of a justification for the type of travel ban Trump signed and who thought it could in fact hurt national security.
"I don't have a scintilla of evidence from the [government] that counters this very powerful evidence," Brinkema said of the declaration.
Reuveni argued — as it has done elsewhere — that the court shouldn't be able to broadly review the president's national security determinations. Individuals in the United States who faced deportation or were otherwise affected by the ban could go to court to pursue their own due process rights, but Virginia shouldn't be able to bring a lawsuit on their behalf, he said. He pointed out that even US citizens don't have an "unfettered" right to travel; for example, he said, conflict or diplomatic issues could restrict their ability to travel abroad.
The Ninth Circuit pushed back on the government's national security argument, writing in Thursday's decision, "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy."
Brinkema said she would issue a ruling as soon as possible, but didn't give a firm time frame.
Pool / Getty Images
WASHINGTON — As President Trump and the White House careen through the first month of his presidency, the lawyers behind him are trying to keep things from falling off the rails.
Think about when people say that Kellyanne Conway, President Trump’s counselor and a key White House spokesperson on TV news shows, has a job that entails her telling people, “What the president was really saying is …”
That’s what’s happening in courts across the country right now, on the most pressing issue in the new administration.
After Trump issued the refugee and travel ban executive order on Jan. 27, there was confusion — in airports and among officials and lawyers — about whether lawful permanent residents from the seven affected majority-Muslim countries were covered by the “entry” ban — which was focused on visa holders. In other words: Could people with green cards (LPRs) get into the U.S. from those countries?
The Department of Homeland Security initially advised that LPRs were not covered by the ban, then the White House reportedly overruled that. On Jan. 29, DHS Secretary John Kelly announced that LPR status would be a “dispositive factor” in making determinations about whether to grant a waiver to allow someone otherwise covered by the executive order to enter the country. In other words, people with green cards were covered by the president’s order but would nonetheless be granted entry into the country under the ban.
That still didn’t settle the matter, especially in a series of lawsuits across the country. So on Feb. 1, White House counsel Don McGahn issued a letter to “clarify” that the travel ban “do[es] not apply” to LPRs.
The unusual letter, from the counsel to the president, purported to provide “Authoritative Guidance” about the executive order and was addressed to Kelly, the acting secretary of state, and the acting attorney general. McGahn acknowledged in the letter that it was being written because “there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States.”
In other words: “What the president was really saying is …”
The Justice Department has backed up the White House’s move, arguing this week in federal court in Michigan, for example, that McGahn’s letter meant that “the court lacked jurisdiction to issue the injunction” against enforcement of the executive order because “there was no longer a live case or controversy between the parties as to the applicability of the Executive Order to the LPR plaintiffs.”
The filing came in a case in which a federal judge had issued a permanent injunction barring the federal government from applying the executive order to LPRs. The Justice Department is asking the court to “dissolve” — or end — that injunction in favor of a more narrow order that would “confirm hereby that the Executive Order does not apply to Lawful Permanent Residents as explained in the guidance issued by the White House Counsel on February 1, 2017.”
White House counsel Don McGahn
Drew Angerer / Getty Images
The Justice Department lawyers went on to argue that McGahn’s letter should deprive the court of jurisdiction — the ability even to hear the challenge — even though White House counsel acknowledged in the letter that the executive order itself left “reasonable uncertainty” about the question.
Notably, the Justice Department’s brief in the Michigan case does not mention that the clarification did not come from the president, but rather simply refers to it as having come from “the White House.”
In the time since McGahn issued the letter, all courts but one to look at the issue have questioned just how “authoritative” the guidance is.
At oral arguments at the US Court of Appeals for the Ninth Circuit over whether to allow the federal government to enforce the executive order while litigation is ongoing, Judge Richard Clifton pressed the government on this point.
“I have to say, is there any legal authority for the counsel to the president to have power to instruct other departments, or to instruct us, as to what the order means?” he asked. “I mean, the president can amend the order, but I’m not sure that the counsel to the president has that authority.”
August Flentje, the Justice Department lawyer arguing in favor of the federal government’s request said that “the guidance from the White House counsel is the definitive interpretation of the order, and the White House counsel speaks for the president in this context.”
The appeals court did not buy it.
“The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely,” the court held in its Thursday night opinion.
The court continued:
“Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”
The one court to side with the Justice Department on this issue did so without directly addressing the issues raised by McGahn’s letter.
In denying a request to extend a temporary restraining order issued in a challenge to the ban out of Massachusetts, US District Judge Gorton wrote, “On February 1, 2017, the White House distributed a memorandum to the Acting Secretary of State, the Acting Attorney General and the Secretary of Homeland Security clarifying that Sections 3© and 3(e) of the EO do not apply to lawful permanent residents.”
Gorton went on to look at the text of the executive order itself, as well as immigration law, concluding that the ban “was not intended to be applied to lawful permanent residents.” Of course, that ignores the confusion within the administration about whether LPRs are covered — as well as McGahn’s acknowledgment that there was “reasonable uncertainty” about whether LPRs are covered.
“In light of the government’s clarification that the EO will not be applied to lawful permanent residents, the claims for injunctive relief by [lawful permanent resident plaintiffs] are moot,” Gorton concluding, without ever addressing the legal authority for or effect of that “clarification.”
On Friday morning, though, in yet another challenge to aspects of the order brought in federal court in Virginia, it was clear that the issue would keep providing difficulties in the administration’s legal defense of the executive order. US District Judge Leonie Brinkema addressed the counsel’s letter, reading from the Ninth Circuit’s decision about the issue.
“You have a problem here,” she said.