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- 03/10/17--11:32: _FAA Defends Its Dec...
- 03/10/17--14:15: _Sessions Ousts Near...
- 03/10/17--15:46: _Activists Prepare T...
- 03/11/17--09:44: _"None Of It Made Se...
- 03/12/17--11:14: _Challengers Will Tr...
- 03/13/17--10:22: _Judge Orders Feds T...
- 03/13/17--16:49: _Half Of All US Atto...
- 03/13/17--19:33: _With Felony Charge ...
- 03/14/17--13:39: _Breitbart Is A Play...
- 03/14/17--14:02: _DREAMer Should Not ...
- 03/14/17--17:43: _Trump Administratio...
- 03/15/17--09:33: _Federal Judges Weig...
- 03/15/17--10:58: _Beware The False Te...
- 03/15/17--20:31: _Federal Appeals Cou...
- 03/16/17--08:52: _Trump's Budget Woul...
- 03/17/17--12:52: _Feds Announce Plans...
- 03/18/17--12:21: _A Federal Appeals C...
- 03/19/17--14:40: _Judge In Hawaii Den...
- 03/19/17--18:09: _A Federal Judge Off...
- 03/20/17--08:42: _DC's Rep Makes A Pl...
- 03/14/17--13:39: Breitbart Is A Player In This Paul Ryan-White House Drama
- 03/15/17--10:58: Beware The False Temptations Of The Russia Story
- 03/16/17--08:52: Trump's Budget Would Boost Funding For Backlogged Immigration Courts
- 03/17/17--12:52: Feds Announce Plans To Continue Defending Travel Ban
Ted S. Warren / AP
WASHINGTON — Airplane seats have been getting smaller, and the Federal Aviation Administration is okay with that.
In court on Friday, the agency defended its decision to reject a petition for seat size standards. Small seats might be uncomfortable, but the agency concluded that they didn't present the kind of immediate safety risks that would require action.
A federal appeals court in Washington, DC, will decide if the agency presented enough information to back up that decision.
Smaller seats placed closer together allows airlines to fit more passengers on a plane. There aren't any federal regulations about the size of airplane seats or how much legroom passengers should get, although the FAA does require airplanes to be configured in such a way that all passengers and crew can evacuate within 90 seconds in an emergency.
A major point of contention is the fact that the FAA didn't provide information it says exists about evacuation demonstrations that involved smaller seats, on the grounds that it is proprietary airplane manufacturer information that can't be made public.
Cramped seating is a common complaint among flyers, but so far the FAA and Congress haven't intervened. The US Senate last year rejected an amendment introduced by New York Sen. Chuck Schumer that would have required the FAA to establish minimum seat size standards.
Now the fight is in court. Citing concerns that smaller seats could make it harder for passengers to evacuate in an emergency, as well as other health and comfort issues, the Flyers Rights Education Fund petitioned the FAA to regulate seat size and pitch (the distance between one point on a seat and the same point on the seat in front of it.) According to the group's court papers, seat widths have shrunk from 18.5 inches in the early 2000s to 17 inches now, and seat pitches have gone from 35 inches to as small as 28 inches.
After the FAA denied the petition in February 2016, the flyers rights group took the case to the US Court of Appeals for the DC Circuit. When an agency rejects a petition to go through a rulemaking process, judges are required to give agencies a large amount of deference. But agencies do have to provide a reasoned explanation for their decision.
On Friday, a three-judge DC Circuit panel expressed skepticism that the FAA should have to release a large amount of technical information about evacuation demonstrations — manufacturers conduct the demonstrations that the FAA reviews — and seat configurations to back up its determination that seat size wasn't a priority. One of the judges also questioned whether the petitioners showed that they suffered a concrete harm from small seats, as opposed to just general concerns, to have standing to bring the case in court.
But the judges did seem troubled that the agency was citing information that it hadn't provided to the petitioners or to the court, and couldn't provide certain details about the size of the seats and the height and weight of test passengers involved in evacuation demonstrations and simulations.
The US Department of Justice lawyer arguing for the FAA, Karen Schoen, said that studies on airplane evacuations had focused on the ability of passengers to move around the aisles and exits, because that's where there were bottlenecks that could slow down an evacuation.
Wasn't it logical to consider passengers' ability to move from their seats, Judge Patricia Millett asked. Schoen replied that there might come a time later when the agency decides that seat size is something it needs to explore.
Judges Judith Rogers and Cornelia Pillard also heard the case.
Yuri Gripas / Reuters
WASHINGTON — Attorney General Jeff Sessions on Friday asked for the resignations of all 46 remaining presidentially nominated and Senate-confirmed federal prosecutors from the Obama administration, effectively immediately, his office announced.
The move, which two US attorneys said came at the request of President Trump, leaves career prosecutors to run those US attorney's offices until a new US attorney is nominated and confirmed for the job or until one is appointed by Sessions.
At least two of the 46 — people with other roles beyond being a US attorney — will stay on the job for now.
"The President called Dana Boente and Rod Rosenstein tonight to inform them that he has declined to accept their resignation, and they will remain in their current positions," Justice Department spokesperson Peter Carr said in a statement.
Boente, the US attorney for the Eastern District of Virginia, also is the acting deputy attorney general and is responsible for overseeing any Justice Department investigations into the 2016 presidential campaign due to Sessions' recusal. Rosenstein, the US attorney for Maryland, is the president's nominee to be deputy attorney general and, if confirmed, would oversee investigations from which Sessions has recused himself.
While new presidents generally replace most of the US attorneys across the nation, the timing — seeking to have the US attorneys leave office immediately and before a successor is nominated, let alone confirmed — does appear to be unusual.
Sarah Isgur Flores, Justice Department spokesperson, announced the news on Friday afternoon.
"As was the case in prior transitions, many of the United States Attorneys nominated by the previous administration already have left the Department of Justice. The Attorney General has now asked the remaining 46 presidentially appointed U.S. Attorneys to tender their resignations in order to ensure a uniform transition," she said in the statement.
"Until the new U.S. Attorneys are confirmed, the dedicated career prosecutors in our U.S. Attorney’s Offices will continue the great work of the Department in investigating, prosecuting, and deterring the most violent offenders," she added.
Flores confirmed that the resignations are to be due effective immediately.
The US attorney for the Eastern District of New York, Robert Capers, confirmed the immediate resignation order in a statement, saying, "This afternoon, I was instructed to resign my position as United States Attorney for the Eastern District of New York, effective March 10, 2017."
Deirdre Daly, who had been the US Attorney for the District of Connecticut, on Friday announced her resignation, "effective immediately," according to a statement posted on the office's website. A spokesperson from the Connecticut US attorney's office told BuzzFeed News in an email that Daly "was notified over the phone this afternoon."
Paul Fishman, the US attorney for New Jersey, announced in a statement, "This afternoon, the President requested my resignation, along with the remaining presidentially appointed U.S. Attorneys across the country, effective at midnight tonight."
Minnesota's US attorney, Andrew Luger, also announced his resignation, effective immediately. Montana's US attorney, Mike Cotter, told the Associated Press that he got the call from Boente, as acting deputy attorney general, informing him the his resignation was being sought by Trump and was to be effective at 5 p.m. Friday.
One of the US attorneys who was asked to resign on Friday, who requested anonymity to speak with a reporter, told BuzzFeed News that he did not receive any advance notice that the administration planned to ask for resignations, and wasn't aware of any other US attorney who did.
The office of one high-profile US attorney — Preet Bharara, who oversees federal prosecutions out of Manhattan and had been reportedly asked to stay on by President Trump — did not confirm his ouster, although he appears to be included in the order.
Matthew Miller, a former spokesperson for the Justice Department at the start of the Obama administration, said they handled things differently.
"U.S. attorneys were generally allowed to stay until a replacement was nominated and confirmed by the Senate. Some chose to resign immediately, and some stayed for months or even years," he told BuzzFeed News. "For example, George Holding in North Carolina stayed on for more than two years, until he indicted John Edwards and then used that as a platform for getting elected to Congress. Rod Rosenstein, of course, stayed for all eight years."
Similar delays in when the US attorneys actually left office occurred in other administrations, as detailed in a Los Angeles Times story surrounding controversy raised over firings of US attorneys in the George W. Bush-era Justice Department.
In March 1993, President Clinton's attorney general Janet Reno asked for the immediate resignation of all US attorneys, prompting criticism that she was interfering with a pending investigation into a Clinton ally, according to reports at the time. Reno denied that allegation, saying she was treating all US attorneys the same.
Sessions was the US attorney for the Southern District of Alabama at the time, and received a resignation request letter dated March 23, 1993, from Reno. The letter, obtained by BuzzFeed News, asked for his immediate resignation, and thanked him for his service.
It was not immediately clear how long Sessions stayed on after submitting his resignation, but he didn't step down right away.
An Associated Press report from April 10, 1993, about a criminal case his office was handling quoted him as the US attorney. Another report says that Reno appointed another lawyer to serve as the interim US attorney as of April 30. The Los Angeles Times report details that several US attorneys served for several months into the Clinton administration and some into 1994.
President George W. Bush didn't issue an across-the-board request that Clinton-era US attorneys immediately resign, but he did replace most by the end of his first year in office.
There are 94 US attorney's offices across the country, one for each federal judicial district. Nineteen of the offices had an acting US attorney overseeing the office as of March 6, according to a Justice Department website. The remaining 28 are serving either under appointment from the attorney general or by court order.
Manuel Balce Ceneta / AP
WASHINGTON — It's not a good time to be an immigration activist.
Advocates for undocumented immigrants have struggled since the Trump administration came to power, overwhelmed by the scope of the campaign promises the new president made to his base on immigration, inundated with phone calls from concerned immigrants with questions about their uncertain future, and powerless to stop ramped up enforcement and deportations.
They haven't even been able to enjoy the survival of Obama's Deferred Action for Childhood Arrivals (DACA) program — an unexpected treat that has gone sour in their mouths with the knowledge that it could be revoked at any time and chief strategist Steve Bannon is using it as a "strategic asset" bargaining chip for future immigration negotiations.
Now besieged activists are girding for a coming fight on the use of public assistance programs by undocumented immigrants, after draft executive orders were leaked to Washington Post and Vox that suggested the administration was considering targeting both those who entered the country legally and illegally and who use public benefits.
The draft order, obtained by BuzzFeed News, would require "DHS and the State Department to establish standards and regulations for determining when aliens will become subject to the 'public charge' grounds of inadmissibility and deportability" — or the likelihood they will require public assistance after entering the country.
Any efforts to change the law to deport immigrants in the country legally would be met with fierce opposition by civil rights and liberal groups.
The Trump administration would not confirm or deny the authenticity of the orders and whether or not they were imminent.
Thousands of Wisconsin activists gather to protest the sheriff's plans to crack down on illegal immigration.
Gretchen Ehlke / AP
But speaking of advocacy on behalf of undocumented immigrants receiving public benefits a Trump official said, "There's a growing problem on the left where the law is a giant inconvenience on the political end. Political calculations are more important than the rule of law."
Marielena Hincapie, executive director of the National Immigration Law Center (NILC), said the floated draft order criminalizing the use of public assistance by immigrants has catapulted the issue to NILC's number one priority, calling it needlessly "inhumane and cruel."
After the draft executive order leaked, a regular NILC conference call that features 60 or so children’s advocates, anti-poverty groups, pediatricians and health care workers, had maximum capacity of 1,000 people on the call, Hincapie said.
In her conversations, Hincapie learned of a mother who recently gave birth but asked to be taken off the list to receive formula from the Women, Infants, and Children (WIC) program for her U.S. citizen child because she was afraid it could lead to her deportation. In another case, a social worker called to find out if a DACA patient with cancer could still be treated.
In California, immigrants with legal status and undocumented alike are asking to be removed from county programs out of fear of Trump's plans and being targeted by immigration authorities.
Nina Buthee, executive director of the California Child Development Administrator's Association said that to be eligible for any form of California Department of Education administered subsidized child care, the child must live in California while services are being received. There is no need to provide proof of citizenship.
"We are finding that families are not dropping their children off at child care centers and homes, fearful that ICE may pick them up at their children’s school. Additionally, families are not rectifying for care, as they want to stay under the radar screen. It is incredibly tragic that children are not getting access to early education services, out of fear that their parents will be taken away," she said, adding that it is also playing out in classrooms in the state.
"Children are building walls with bricks to protect their friends and families," she continued. "They are more emotional during drop-offs, as they don’t know if they will see their parent again. This issue is having a very major impact on families."
A fight over the use of public assistance by immigrants would get ugly fast because of the emotional nature of individual cases and the fact that the Trump administration and other Republicans see it as advantageous terrain for them.
“There's a $20 trillion debt and Democrats want to protest spending taxpayers dollars on people who are here illegally?" the Trump official responded about mounting concerns from Democrats and activists that immigrants' use of public benefits programs will be targeted.
"No one is going to defend the woman that’s getting welfare benefits," said a Republican strategist who speaks to administration officials on the position of conservatives.
But the coming fight would feature more than immigration groups.
The American Academy of Pediatrics (AAP), which also sees pushing back against the possible targeting of users of public benefits as a top priority for their organization. said that one in every four children lives in immigrant families and nine out of ten are US citizens.
"A pediatrician cares for children and anything that limits access to benefits on account of where children or their parents were born threatens their well-being," said Dr. Julie Linton, co-chair of AAP’s immigrant health special interest group, and professor of pediatrics at the Wake Forest School of Medicine.
Linton said that her organization is in the process of collecting data that shows "pediatricians are reporting decreased patient visits in clinics on account of fear and uncertainty" in American communities.
Read the draft executive order here:
O'Malley answers questions last spring at a panel in Washington.
Drew Angerer / Getty Images
Martin O’Malley remembers running for president like this: He is on a train, heading for a bridge. He can see the bridge is giving out. He is shouting and waving and pointing at a “better lane,” he says. “But it’s like I couldn’t get anybody on the train to listen.”
“It was the most frustrating experience I’ve ever had in politics.”
O'Malley was still a young mayor in Baltimore, elected at 36, when he started hearing people say he might one day “go all the way.” Now, at 54, on the other side of that dream, he is at turns resigned to and not yet at peace with the eight months he spent as a candidate for the Democratic nomination. That his 2016 campaign never caught fire, or even much of a spark, is a reality he reasons with in one moment, ticking off outside contributing factors, before adding in the next that, in fact, “None of it made sense.”
“I couldn't not try,” he says in a recent interview over two rounds of Guinness and plantain chips at a Cuban restaurant in Baltimore, the city where he launched his career. “But at the same time it was very frustrating,” he adds. “Really, really frustrating.”
“Thank god I picked the right high office to have that experience.”
It was around this time four years ago that O'Malley, the former governor of Maryland, began erecting the “framework” for his presidential bid. And now, like then, he is filling his calendar with party work, helping candidates in special elections (two in Iowa, one in Delaware), and headlining local fundraisers and events (most recently, last weekend, in Iowa). And now, like then, he is toying with the idea of a campaign. (“As for the question of whether I might run for president again in 2020, I just might," he told NBC News.)
But this is not the O’Malley who ran headlong into 2016. More than a year after his dismal finish in Iowa, securing less than 1% in the caucuses against Hillary Clinton and Bernie Sanders, he still carries the frustration of a campaign spent trying and failing to find an “option to open up the lane.” He has a new distaste for the party establishment (“Washington gobbledygook”). And even as he supports local Democrats, trying to carve out his own role as the party centers itself around President Trump, he is without a clear next move for the first time in years.
His hard-charging political operation — a tight cadre of advisers, one or two always by his side in the years before 2016 — is no longer a familiar presence. He travels now with a single aide, a young operative named Ben Chou who ran the campaign's operations team in Iowa. As the only full-time staffer at O'Malley's PAC, O'Say Can You See, Chou helps manage the political work and keep an eye on the budget. (They began their trip to Iowa last weekend on the east coast around 5 a.m., touched down in Des Moines for a full day of events, before turning promptly around the next morning on a 7 a.m. flight.)
O'Malley has made himself widely available as a surrogate, telling officials at the Democratic committees in Washington that he is willing to go anywhere that's helpful.
Mostly, though, he is home with his family in Baltimore or at Boston College Law School, where he teaches a course on the data-driven government and "performance management." The practice of using data to evaluate government and dictate policy is one that O’Malley pioneered as mayor and governor and has described as central to what he once called his “omni-partisan, apolitical” and “not fundamentally ideological” governing philosophy.
Despite a brief effort by aides in 2013 to promote O’Malley as a “performance-driven progressive” with a “brand of results-oriented leadership,” these ideas didn’t become central to his campaign. (Perhaps in part because the tough-on-crime policies and tracking programs that put him on the cover of Esquire as “America’s best young mayor” in 2002, would in 2016 alienate the young voters who have protested the police tactics and sentencing policies that produced one of the world’s largest prison populations.)
Instead, O’Malley launched his campaign under the banner of a “New Leadership” slogan; made an aggressive play to be the most progressive candidate in the race; and became sharply critical of Clinton, a candidate whom he endorsed and campaigned for at length eight years earlier.
As he sees it — and this remains a going topic of discussion — his problems were more structural. First, there was money. (The Clintons were “formidable,” he says, in “shutting down fundraising potential.”) Second, a climate of “discontent” on which Sanders, he says, had a “monopoly.” And third, the debates. (With only four before the Iowa caucuses, he says, an “unknown” candidate had no chance of “breaking through.”)
His refrain about deciding to run in 2016 despite improbable odds — “I couldn’t not try” — is one he seems to offer less as an explanation than a hard statement of fact.
Supporters at an event in Iowa last weekend were unsure whether to laugh when, after thanking them, O’Malley added flatly: "Seeing as how things turned out [with Trump], I want to thank you for saving my life, because I'd probably be suicidal if I hadn't tried.”
The remark, if not literal, was serious — an urge rooted in part in what friends have described as a genuine belief, affirmed by others along the way, that he could do the job. (It was Bill Clinton, in 2002, who wrote to say, “I won’t be surprised if you go all the way.”)
Alex Wong / Getty Images
There was also the memory of the 1984 race, he took a leave from college at 19 to volunteer for Gary Hart, watching him start as an asterisk in the polls and almost pull off an upset. But unlike Hart in New Hampshire, O'Malley's moment in Iowa never came. (Sanders, it turned out, had the moment.) Despite spending the most time, staff, and money there, it was hardly enough. He had just one organizer in Polk County, the state’s largest voting block, an operative in Iowa at the time said. Clinton, by comparison, had 25.
On his trip there last weekend, his third since the election, O’Malley slid back into the rhythms of a candidate, greeting crowds of 40 or so people at most of his events.
He railed against bills moving through the Republican-led state legislature, hand-delivered a check to a state senate candidate, and talked up the winners of Iowa’s two special elections earlier, Jim Lykam (“I don’t just ‘like him,’ I love him!”) and Monica Kurth. O’Malley campaigned for both, a move that has drawn appreciation along with some gentle ribbing from state Democrats. Before speaking at a Lions Club in Johnston, state Senator Rob Hogg and a few others cracked jokes about whether O’Malley was trying to run “for president or governor” — which is to say governor of Iowa.
While party leaders and grassroots activists focus on opposing Trump, O’Malley’s recent efforts make him one of the few Democrats focused more on trying to draw national attention and money to state and local candidates — and to articulate “who we are as Democrats,” as he said in Johnston — than on combating the new administration.
Without that message, he told them, the party risks becoming a “west coast” and “east coast party,” a concern also voiced by officials who worry that Democrats have defined themselves more by their opposition to Trump than a positive policy argument, economic or otherwise. (Clinton’s strategy in the general election, to focus on Trump’s qualifications and character, also left little room for typical contrasts on economic and social policy.)
O’Malley, perhaps, sees that as his lane now.
Over his Guinness in Baltimore, the subject of the party’s ideological divides sends him, suddenly, into monologue, his voice building above the bar — “This is not the time for centrism,” he says, “for mealy-mouthed manners, for singing Kumbaya!”
He winds back down, pauses, and points at the tape recorder on the table.
“That was pretty good.”
Saul Loeb / AFP / Getty Images
WASHINGTON — At 12:01 a.m. Thursday, President Trump’s new refugee and travel executive order is due to go into effect. But before that happens, Trump’s lawyers at the Justice Department will have to make their way through several hurdles: court challenges across the nation.
The first executive order, signed on Jan. 27, happened with no warning, went into effect immediately, and led to chaos at airports across the country. The new executive order, signed March 6, is not yet in effect, leading to less chaos — but also to a more organized effort to get the executive order in front of judges before it takes effect.
Judges in two federal courts already have set hearings for Wednesday on whether to halt enforcement of the new executive order before it goes into effect, with a third likely to be asked to take similar action before Thursday. A fourth federal judge has already issued a narrow temporary restraining order, which halted enforcement of the new executive order against three specific individuals. There also remain the possibilities of further developments in other pending challenges to the first executive order or new cases being filed against the new executive order.
The new order is significantly different from the original order, a point expected to be highlighted by the federal government in its defense of Executive Order 13,780. The new order made clear that lawful permanent residents and current visa holders were not subject to the 90-day travel ban provision. It also removed Iraq from the list of countries included — leaving Iran, Libya, Somalia, Sudan, Syria, and Yemen. In the refugee ban provision, the main element — a halt of the refugee program for 120 days — stayed the same, but two provisions that had caused trouble originally were removed: the indefinite halting of the Syrian refugee program and the minority-religion preference to be given once the refugee program restarted.
The second argument expected to be pressed by Justice Department lawyers in advance of the new executive order is highlighting the importance of the waiver provisions, which they maintain are more expansive than in the original order. These provide protection for individuals presenting specific cases that might have caused trouble for the administration under the first order.
The arguments against the new order basically are expected to fall into two camps. The first is that the main provisions of the order — the 90-day travel ban and 120-day halt to the refugee program — haven't changed aside from some alterations around the edges. There were waiver provisions in the first order, the opponents of both orders note, and laying out more detailed waiver possibilities doesn't change the way the substance of the order should be viewed.
The second argument is, more or less, that the administration's first executive order — and Trump's campaign before that — already poisoned the well. If the first comments were that Trump promised to implement a "Muslim ban," and the first order was seen by some courts as a watered-down version of that ban, there is no reason why the ill intent of the original campaign promise disappears in any later iteration of that promise.
Those arguments will now be presented in multiple courts in multiple time zones in the 24 hours before the new order is due to go into effect, setting up what is likely to be a complicated, and long, day on Wednesday — especially if lower court orders get appealed immediately.
The hectic upcoming week comes a little more than a month into Attorney General Jeff Sessions’ tenure at the head of the Justice Department. Sessions, who is running the department currently with no senior staff yet confirmed by the Senate, also now is dealing with the fallout from Friday’s ordered resignations of nearly half of the US attorneys across the country.
Cases to watch
The first Wednesday hearing, taking place in Maryland at 9:30 a.m., was ordered by US District Judge Theodore Chuang, in a case brought by two nonprofit refugee organizations, as well as individuals affected by the order. The International Refugee Assistance Project and HIAS, Inc., are going broad, asking for an order “enjoining Executive Order 13780 in its entirety.” Among those representing the plaintiffs in the case are lawyers from the national ACLU, the ACLU of Maryland, and the National Immigration Law Center.
The second Wednesday hearing, taking place in Hawaii at 9:30 local time (3:30 p.m. Eastern Time), was ordered by US District Judge Derrick Watson, in a case brought by Hawaii and an individual affected by the order. Hawaii Attorney General Doug Chin has brought in the Hogan Lovells law firm, including former US Acting Solicitor General Neal Katyal, to help represent the state. Slightly more limited than the litigation taking place in Maryland, Hawaii is seeking a temporary restraining order halting enforcement of sections 2 and 6 of the new executive order — the travel and refugee provisions.
Meanwhile, in the case that halted enforcement of the first executive order, Washington v. Trump, US District Judge James Robart “decline[d] to resolve the apparent dispute between the parties” over whether the prior injunction also applies to the new executive order until an amended complaint is filed that addresses the new executive order. Given that Washington Attorney General Bob Ferguson said an amended complaint will be coming soon — and given Washington’s aggressiveness in this case — it would be expected that Ferguson’s office, along with the other states expected to be joining his litigation, will be making a move early this coming week. (Those states are expected to include Minnesota, Oregon, New York, Massachusetts, and Maryland.)
A first loss for the new order
Notably, the new travel has already order racked up its first — if temporary — court loss, in a brief order from US District Judge William Conley in the Western District of Wisconsin.
John Doe, a man who was granted asylum in the US due to his credible fear of persecution if he were to be returned to Syria, is seeking to bring his wife and daughter to the US under a similar asylum claim but fears they will not be able to travel to the US under the executive order.
Conley, in a Friday order, concluded that Doe “presented some likelihood of success on the merits” of the lawsuit. “Moreover, given the daily threat to the lives of plaintiff’s wife and child remaining in Aleppo, Syria, the court further finds a significant risk of irreparable harm,” he wrote, prohibiting the federal government from enforcing the new executive order against Doe, his wife, or his daughter.
Conley’s decision is only a temporary restraining order, however, and further briefing on Doe’s request for a preliminary injunction is set to take place over the next 10 days, with a hearing set for 3 p.m. March 21.
Other existing cases
In addition to the four cases previously discussed, there also remain questions about what actions Virginia Attorney General Mark Herring will take in the litigation where his office obtained a preliminary injunction against parts of the first executive order. His office announced on March 6 that he would be reviewing the new order — the day Trump issued it — but Herring's office has taken no further action since.
Additionally, the Arab American Civil Rights League and others who brought litigation in Michigan filed a notice on March 6 that they would be filing an amended complaint in their lawsuit to address the new order.
Finally, the PARS Equality Center and others who brought litigation in DC will be submitting an amended complaint on Tuesday, according to a joint status report filed on Friday, but the remainder of the agreed-upon timeline for the case pushes any ruling in the case off until April.
Nicholas Kamm / AFP / Getty Images
WASHINGTON — Already Monday, states and the federal government are ratcheting up their clash over President Trump's new travel order — with new states formally joining the fight in Washington state and the Justice Department looking to push back one proposed hearing until after the new executive order is due to take effect.
In Seattle, Washington Attorney General Bob Ferguson filed a request that US District Judge James Robart apply his Feb. 3 injunction halting enforcement of the first executive order to the two key travel and refugee bans in the new order.
Notably, Ferguson's office is asking for a hearing to be held on Tuesday to address the request — a day before hearings have been set in two other cases challenging the new executive order, which is due to go into effect at 12:01 a.m. ET Thursday.
Robart quickly responded, ordering the Justice Department to respond to the state's request by 4:30 p.m. PT Tuesday. Additionally, he suggested a hearing might not but necessary, but that, if one is, it will not be held before Wednesday.
The move from Ferguson followed the filing of an amended complaint in the Washington case to address the specifics of the second executive order — and also expanding the states behind the lawsuit to include California, Maryland, Massachusetts, New York, and Oregon. Minnesota, which initially joined Washington's litigation against the first executive order, does not appear as a plaintiff in the new complaint.
Meanwhile, in a case brought by the Council on American–Islamic Relations in Virginia, the Justice Department pushed back on a request for a Wednesday hearing on a newly filed request for a temporary restraining order in that challenge, asserting that the defendants "have not diligently prosecuted" their original complaint against the first order.
The Justice Department asked for the hearing to be moved to Friday — after the new executive order is due to take effect. US District Judge Anthony Trenga went even further in granting the Justice Department's requesting, continuing the hearing on the plaintiffs' motion for a temporary restraining order until March 21.
Gary Cameron / Reuters
The Trump administration on Friday demanded resignations from 46 US attorneys who were holdovers from the Obama administration.
There are 93 US attorneys nationwide, though. So what happened to the other 47?
None were affected by the resignation request.
Before this past Friday's move, 16 US attorneys had left their posts since the November election — according to information obtained by BuzzFeed News through a review of available records and discussions with US attorneys' offices — leaving acting US attorneys heading those offices.
The other 31 US attorney's offices have been run by acting or specially appointed US attorneys since before the election — and they've all kept their jobs for now.
The US attorney positions in their districts are still officially vacant — these officials are serving as placeholders until Trump can name his nominees and get them confirmed by the US Senate.
But if Trump was looking to purge US attorney offices of high-level officials with ties to the Obama administration, the presence of at least a few of the specially appointed US attorneys still in office complicates the picture. It's a group that includes two officials who were President Obama's nominees to lead their respective offices — they weren't confirmed — and more than 20 who were promoted to be in charge by former US attorney general Loretta Lynch.
Still, nearly all of the 47 acting and specially appointed US attorneys are career prosecutors who have served under at least two presidents. BuzzFeed News identified only two who joined the Justice Department during the Obama administration. (The DOJ hire dates for three acting or interim US attorneys weren't immediately available.)
As of Monday afternoon, there were five presidentially nominated and Senate-confirmed US attorneys still in office. The White House confirmed last week that Trump declined to accept the resignations submitted by US Attorney Dana Boente of the Eastern District of Virginia, who is serving as the acting deputy attorney general, and US Attorney Rod Rosenstein of Maryland, who is Trump's nominee for deputy attorney general.
On Monday, Connecticut US Attorney Deidre Daly and Richard Hartunian of the Northern District announced the Trump administration had decided to let them stay. According to the Justice Department's website, one other presidentially appointed US attorney also is still serving: John Huber of Utah. A spokeswoman for the Utah office declined to comment on the status of Huber's resignation, which she said was submitted over the weekend.
The gap between the number of presidentially appointed US attorneys asked to resign on Friday and the acting or interim US attorneys who were not highlights just how many top federal prosecutor seats were vacant by the end of the Obama administration. One-third of the offices — 31 — have been led by acting or interim US attorneys since before November.
When a presidentially nominated and Senate-confirmed US attorney resigns, the first assistant US attorney automatically becomes the acting US attorney under federal law. They can hold that job for up to 210 days. There were 19 acting US attorneys before Friday's resignations.
Once there's a vacancy, the attorney general also has the option of appointing an interim US attorney. That appointment, however, expires after 120 days. At that point, the US district court for that area can appoint a US attorney to serve indefinitely until the president fills the vacancy with a Senate-confirmed official.
Before Friday, there were 28 US attorneys appointed by an attorney general or a court. At least 21 were appointed by Lynch in 2015 or 2016, and most of them are now serving by court order because the 120-day period passed. The US attorney for Puerto Rico, Rosa Rodriguez-Velez, was appointed interim US attorney in 2006 — under the George W. Bush administration — and has been serving by court order since 2007. The appointment dates for the other six interim US attorneys couldn't be confirmed as of Monday afternoon.
Most of the specially appointed US attorneys had been serving as the acting US attorney when they were appointed by an attorney general. US Attorney Channing Phillips in the District of Columbia didn't follow the typical path — he was nominated by Obama in early October 2015 for the US attorney job, and then a week later was appointed interim US attorney by Lynch; he's been serving by court order since February 2016. Phillips had been a top Justice Department official since 2010 under former attorney general Eric Holder and then Lynch. From 1994 to 2010, he'd worked in the DC US attorney's office.
South Dakota US Attorney Randolph Seiler was also nominated by Obama in October 2015 and appointed by Lynch as interim US attorney around the same time. Unlike Phillips, though, Seiler had already been serving for several months as the acting US attorney. He's been serving as US attorney court order since February 2016.
Phillips and Seiler never had hearings in the Senate, and their nominations were returned to the White House in early January.
Downtown Washington, DC, on Inauguration Day.
Zoe Tillman / BuzzFeed
WASHINGTON — The indictment against 214 people charged with felony rioting in downtown Washington, DC, on the day of Donald Trump’s inauguration offers a minute-by-minute account of a political demonstration turned violent, as marchers allegedly smashed storefronts and car windows.
But the charging papers are largely silent on what each of those 214 defendants was doing at any given time. It accuses them as a group of participating in and encouraging destruction and vandalism that caused thousands of dollars in property damage. For lawyers defending arrestees, the absence of details that specifically tie their clients to criminal activity is a problem.
In the month and a half since the arrests, lawyers have been making moves to get cases tossed out. They’ve filed papers in least a dozen cases to date arguing that the judge should dismiss the rioting charge because prosecutors have failed to put defendants on notice of what they’re individually accused of, making it difficult to prepare a defense.
“This thing that they put out there to charge people with felonies is nothing more than a template,” Jason Flores-Williams, a lawyer representing three defendants, told BuzzFeed News.
Filings in 12 out of more than 200 cases might not seem like a big deal, but they’re not alone. The National Lawyers Guild, which trained and deployed legal observers to document interactions between police and protesters on Inauguration Day, has called for the rioting cases to be dismissed, saying that police indiscriminately rounded up and arrested people that day.
The US attorney’s office in Washington, DC, which is handling the prosecution, has yet to respond to the motions to dismiss, and a spokesperson declined to comment. It’s still early in the litigation. The most recent indictment was returned by a grand jury on Feb. 21, and since then defendants have been coming to court in small groups for arraignments. This week, 100 defendants have court dates, including several who have asked to have the rioting charge thrown out.
The possibility of a felony conviction raises the stakes. The maximum sentence under DC law is 10 years in jail, or a fine of up to $25,000. Protesters arrested en masse in the past typically faced a lower misdemeanor charge, such as failing to obey a police officer, or had the option of paying a nominal amount of money to resolve the case shortly after being arrested, a process known as “post and forfeit.”
"The Government's approach to this case—indict everyone first, figure out what happened later—is a palpable threat to the exercise of core First Amendment rights."
Prosecutors haven’t publicly explained their charging decisions, but the indictment focuses on the costly damage to stores and vehicles that morning. Four defendants were separately charged with destruction of property, tying them to specific damage, and one of the four was also charged with throwing objects at police.
Defense lawyers say that if prosecutors want to pursue the felony rioting charge, they need to provide more details and evidence. In some cases, lawyers also are arguing that the US attorney’s office and the Justice Department as a whole should be disqualified, since the protests were against Donald Trump, who now leads the executive branch. DOJ’s involvement raises questions about the motivation behind decisions to charge the protesters, lawyers contend.
Flores-Williams says the DC cases have would-be protesters across the country worried about how the Justice Department will respond to political demonstrations going forward. Since Trump’s election, protests have taken place across the country. Most have been peaceful — there were zero arrests on Jan. 21 during the Women’s March in Washington, which involved hundreds of thousands of people — but some have involved confrontations with police.
“I talk with protesters all the time ... the first thing that people say now is, ‘Am I going to get a felony?’ This has been effective for [the Justice Department]. The word ‘felony’ is on everybody’s mind now,” he said.
‘Organized and intentional’
DC law defines a riot as a “public disturbance” involving five or more people that creates “grave danger” to people or property. The section of the law that the Jan. 20 defendants are charged under applies to people who “willfully incited and urged others to engage” in a riot that caused serious injury or property damage worth at least $5,000.
Proving intent to a jury in a mass arrest case is a high bar for prosecutors to meet, said Andrew Ferguson, a law professor at the University of the District of Columbia David A. Clarke School of Law.
“You’re going to have citizens weighing whether they think all of these people willfully engaged in rioting, which sounds a lot more grand and horrific than the destruction of a window in a bank and a burning trash can,” Ferguson said. At the same time, he said, in an era when everyone has a cell phone with a camera and there are surveillance cameras all over, there’s likely a lot more evidence for prosecutors to work with.
Zoe Tillman / BuzzFeed
The Jan. 20 demonstration, which began shortly after 10 a.m., was billed as an “anti-capitalist” and “anti-fascist” protest. Many marchers wore all black, and some covered their faces — a tactic prosecutors said is known as a “Black Bloc.” As the group moved into downtown DC, some participants tipped over newspaper boxes and trash cans into the street, and smashed windows of storefronts, including a Starbucks and a Bank of America, and a limousine, which would later be set on fire.
At a Jan. 20 press conference, then-acting DC police chief Peter Newsham said it appeared participants came armed with crowbars and hammers, and that the destruction seemed “organized and intentional.” He drew a distinction with protests earlier in the morning that involved demonstrators using their bodies to block inauguration attendees from getting to security checkpoints, saying that was a type of civil disobedience the department tried to work around.
By the end of the day, police arrested 230 people for rioting. Prosecutors have dropped cases against 16 defendants, a group that included journalists and legal observers. The US attorney’s office has declined to comment on the reason it dismissed those cases.
The Metropolitan Police Department and US Park Police are facing a civil lawsuit claiming the mass arrests that day were unconstitutional and that police used excessive force. The government hasn’t filed a response yet to those allegations.
"Indictments can be very bare and they can be more than constitutional."
The indictment returned on Feb. 21 in the criminal cases describes a roughly half hour period, from 10:19 a.m. to 10:52 a.m., when the alleged destruction took place.
It notes that as some people engaged in acts of violence and vandalism, others “cheered and celebrated.”
More than 40 defendants have been arraigned since Feb. 21, all entering pleas of not guilty. Arraignments for other defendants are scheduled throughout March and April. At least one defendant has filed a request to sever his case from the rest, arguing that there isn’t any specific evidence that he rioted, so it is unfair to lump him in with defendants where the government might have a stronger case.
First Amendment 'threat'
In at least a dozen cases, lawyers have sought to get the indictment dismissed on the grounds that prosecutors failed to include information linking individual defendants to the alleged rioting.
Flores-Williams wrote in the dismissal requests he filed in February that “a single generalized narrative” wasn’t enough for the government to prove that it had probable cause to press the rioting charge against his clients.
Absent specifics, lawyers in another case argued in their dismissal request that a judge wouldn’t be able to tell if the government was wrongly prosecuting people who were engaged in political speech that was protected by the First Amendment, as opposed to criminal rioting.
“The Government’s approach to this case—indict everyone first, figure out what happened later—is a palpable threat to the exercise of core First Amendment rights,” the lawyers wrote in that court filing.
Protesters in Washington, DC, during President George W. Bush's second inauguration in 2005
Len Spoden / AP
There is some legal precedent on the government’s side. In a 2009 opinion, the US Court of Appeals for the DC Circuit explored what defines rioting under DC law and how wide a net police can cast in arresting a large group of people for the actions of a few. That case involved the arrests of 72 people during demonstrations on Jan. 20, 2005, the evening of President George W. Bush’s second inauguration.
The protesters were arrested on the misdemeanor charge of parading without a permit. In a civil lawsuit filed later claiming the arrests were unconstitutional, several arrestees argued that parading without a permit wasn’t a criminal offense that could give police probable cause to make arrests. Lawyers for the District of Columbia countered that police reasonably believed the demonstrators were involved in other criminal activity at the time, including rioting.
The DC Circuit noted that police officers could establish probable cause to arrest a group acting as a “unit,” even if they couldn’t pin specific crimes to certain individuals. And cheering on other people committing acts of violence would fall under the rioting law, the court said.
DC Circuit opinions aren’t binding on the local DC Superior Court, where the rioting cases are being litigated, although judges can look to them for guidance. A search of opinions from the DC Court of Appeals, the city’s highest local court, didn’t turn up decisions that squarely addressed rioting. In one 2011 decision, judges expressed concern about the failure of prosecutors to present witnesses at trial who could identify defendants charged with failing to obey police as the people who actually were participating in a protest and disobeying officers.
Roscoe Howard Jr., who served as the District’s US attorney from 2001 to 2004, said that indictments can be light on details, as long as they put a person on notice of the charges they face. If prosecutors fail to put forward evidence to support charges against defendants, that can be challenged at other stages of the case or at trial, he said.
“Indictments can be very bare and they can be more than constitutional,” he said.
Conflict of interest?
The other set of motions to dismiss filed so far press a more unusual argument challenging the Justice Department’s participation in the Inauguration Day cases. Lawyers argue that with Trump now serving as the head of the executive branch, including the Justice Department, it raises questions about the motivation for the prosecution and whether prosecutors can exercise independent judgment.
“When you have a prosecutor, you want a prosecutor who is essentially going to be fair, not be prejudiced, not be biased. But what we have is an individual who is essentially prosecuting these individuals and they have a direct tie” to the administration, said Christopher Mutimer, a lawyer representing one of the defendants who is arguing that the Justice Department should be disqualified.
In lieu of the US attorney’s office, Mutimer said that the DC Office of the Attorney General could have been brought in to handle these cases, but city prosecutors don’t have jurisdiction over felony cases. Under the unique law enforcement set-up in the nation’s capital, federal prosecutors handle felonies and other serious local crimes, while the local attorney general’s office handles misdemeanors.
Howard said that absent a more direct conflict of interest — for instance, if one of Trump’s family members worked in the US attorney’s office — he didn’t think the disqualification argument would go far.
“Although Donald Trump is the head of the executive branch, that certainly doesn't give you carte blanche to commit crimes against the executive branch or with the executive branch in mind and not be prosecuted,” Howard said.
Pool / Getty Images
The timing was perfect.
Late Monday night, Breitbart News, the right-wing website that has long antagonized the Republican establishment and been a platform for Donald Trump’s causes, published an audio clip from October of House Speaker Paul Ryan telling GOP House members that he was “not going to defend Donald Trump — not now, not in the future.”
Ryan’s comments — which he made on a conference call shortly after the release of the explosive 2005 Access Hollywood tape in which Trump infamously discussed grabbing women “by the pussy” — weren’t new, exactly (they were reported last fall). But the release of the audio clip appeared an attempt to exacerbate the rift between the White House and Republican leadership as they try to push an almost universally-loathed health care bill through Congress.
With Trump’s rise, Breitbart has moved from the fringes to a central media player (on Twitter, after a big political development, political reporters can now be found occasionally posting screencaps of the Breitbart frontpage or a link to the lead story). Steve Bannon, the president’s top strategist, ran the site for years — and has been followed by a handful of former Breitbart staffers to White House, including Julia Hahn, a former writer on the site known for sharp critiques of Republicans like Ryan.
Immediately following the story’s publication late Monday night, the guessing game began: Are Bannon and Breitbart allies the sources for stories like these in an effort to telegraph a message from the White House to Ryan, or is the post-Bannon Breitbart driving its own agenda?
Regardless, according to those on Capitol Hill, the Breitbart story is just another example of how the White House and Trump allies are already blaming Ryan for any potential future failures, whether it’s on Obamacare or general frustration among Trump's base. "The Trump people are making Ryan go out there and take all the arrows and bullets," said a top Republican who has been working with the White House and the speaker. "They've made it his plan even though they were probably negotiating with him. It's not a full-throated endorsement. That's fascinating how they've maneuvered this situation."
"I think it's old news. Correct me if I'm wrong, but wasn't this already out there?” a senior administration official said of the Ryan tape, who added that everyone at the White House already knew about the comments from the October conference call.
Another White House official was visibly angry with Breitbart over the story.
“Anything that is harmful to passing the president’s agenda is counterproductive,” the official said.
Bannon did not respond to a request for comment.
In recent days, stories on Breitbart — a consistently fierce Ryan critic and Trump booster — have been fervently opposed to the American Health Care Act, painting the White House’s attempt to uproot Obamacare as flawed and placing the lion’s share of the blame on Ryan. “This is the first major initiative that Trump has worked on with Ryan — and the fact it is going so poorly calls into question whether Speaker Ryan, the GOP’s failed 2012 vice presidential nominee who barely supported Trump at all in 2016, really understands how Trump won and how to win in general,” the Breitbart story reads.
“The president gave Ryan a chance,” a “source close to the President” told Breitbart. “If he doesn’t get his act together soon, the President will have no choice but to step in and fix this on his own. He’s the best negotiator on the planet, and if this were his bill not Ryan’s it would not be this much of a mess.”
On Tuesday, the site dug in further with a story headlined, “As Donald Trump Eclipses Paul Ryan’s Popularity in Ryan’s Own District, His Constituents Turn on Obamacare 2.0 Bill,” which cites a Public Policy Polling survey measuring Ryan’s favorability in his district (a point behind Trump’s). “His own constituents are aligned against his Obamacare 2.0 bill — also called RINO-CARE, Ryancare, or Obamacare Lite — the American Health Care Act,” the story reads.
“The president and his team were assured by Ryan that conservatives would, in fact, be on board with it in the beginning, something that has turned out to not be accurate,” Breitbart wrote in the Monday story. “Several senior White House aides confirmed to Breitbart News that while the administration is publicly touting the bill as the party line, the President is much more willing to wheel and deal on this front than Ryan loyalists on his team would have anyone believe.” Indeed, on Monday Politico reported that the White House is increasingly likely support more conservative changes to the House Obamacare alternative, citing two administration officials.
Breitbart has been a key media advocate of Trump’s agenda, but not quite when it comes to Ryan and the health care issue. Last week, when Republicans introduced their plan, Breitbart’s website led with a story headlined “Obamacare 2.0 guts enforcement, gives illegal aliens healthcare through identity fraud. Other than that…”
A spokesperson for Ryan refused to go on the record, referring BuzzFeed News to the comment given to Breitbart Monday night. “[Ryan’s comments were] in response to [the Access Hollywood tape], but as everyone knows, they came together toward the end of the campaign and the speaker vocally supported him and even campaigned with Pence,” Ryan spokesman Brendan Buck told Breitbart News.
That House leadership has had to tangle with Breitbart is nothing new, much to the frustration of members and aides who are forced to engage with the outlet when their boss is on the receiving end of a bad Breitbart story but know it’s ultimately a pointless exercise to try and stop it.
“They tend to get more credit than they deserve, but they play a role in creating mischief and that's undeniable,” said a former House leadership aide. “They don't care about facts and that can be really irritating when you are in the middle of it… Breitbart's whole business model is attacking congressional leadership. That's the only thing their writers know how to write.”
The site also went after press secretary Sean Spicer for claiming that the health care bill fully repeals Obamacare. In a leaked Breitbart Slack message obtained by Business Insider, Matthew Boyle, the website's Washington editor and author of the Ryan tape story, told colleagues, “We are Breitbart. This is war. There are no sacred cows in war.” Business Insider also reported that Boyle had clashed with Bannon after Breitbart published a critical story about White House chief of staff Reince Priebus. The White House has sought to trot the duo out as allies.
And the anger with Boyle has not abated. One administration source noted that while Boyle may clearly love President Trump, he obviously has it out for Ryan, and that’s not helpful right now.
“If you support the president but go after the speaker, you’re hurting the president,” the source said.
Boyle did not respond to a request for comment. When asked for comment, a Breitbart spokesperson said that they had already commented to Politico.
Ahead of Ryan’s primary battle against Republican businessman Paul Nehlen, Boyle in August wrote that “the sitting Speaker of the House, Rep. Paul Ryan (R-WI), has been brought to his knees, bowing down before the almighty nationalist populist movement, as his life’s work—a career in politics—flashes before his eyes.” Other Breitbart headlines about the primary challenge included, “Nehlen: Paul Ryan a ‘Soulless Globalist’ ‘Grown in a Petri Dish in DC’ Who Puts ‘Corporate America’ Over Wisconsin Workers.”
Jeffrey Lord, a Trump surrogate on CNN who served in the Reagan administration, noted that in this administration Breitbart fills the role that was played by National Review and American Spectator in previous Republican administrations — acting as a forum for infighting within conservative policy circles.
While he said the bickering between the White House and the Hill isn’t terribly surprising because it has occurred in both parties, he cited Sen. Rand Paul as someone who has suggested that Ryan has a ‘my way or the highway’ approach while Trump is willing to negotiate.
“He’s the president, I do think it’s a good idea for him to take control of the process,” Lord said. “This is the guy that wrote the Art of the Deal.”
Kate Nocera and Tarini Parti contributed reporting.
Karen Ducey / Getty Images
WASHINGTON — A federal magistrate judge overseeing the challenge to the detention of a DREAMer in Seattle has recommended that the undocumented immigrant's challenge be allowed to proceed outside of immigration court.
The magistrate judge also recommended, however, that the DREAMer, Daniel Ramirez Medina, not be released from detention while the case proceeds.
Ramirez was detained on Feb. 10, after US Immigration and Customs Enforcement (ICE) agents came to the house, where he was staying, searching for his father. Ramirez also was detained, later identified as having "gang association," and has since been placed into removal proceedings and is being held at the Northwest Detention Center. Ramirez, who had previously been approved for the Deferred Action for Childhood Arrivals program (DACA), has denied the gang association claim.
US Magistrate Judge James Donohue held a hearing March 8 on the government’s motion to dismiss the case and Ramirez’s motion for conditional release.
Objections to Tuesday's report from Donohue are to be filed by March 28. If there are none, US District Judge Ricardo Martinez will be free to consider whether to accept, reject, or modify the recommendation on March 31.
Ramirez — represented by a large group of advocacy and law firm lawyers and law professors — filed a habeas corpus petition challenging the constitutionality of his arrest and detention in federal court.
The federal government argued that Ramirez was barred from bringing a claim in federal court. Instead, they have asserted that the case should be heard through the immigration court system, an administrative court organized under the Justice Department.
Donohue sided with Ramirez on Tuesday on the question of whether the claim could be brought in federal court.
"Because Petitioner’s constitutional claims relate to the ICE officers’ actions before removal proceedings were filed, and do not seek to disrupt the outcome of removal proceedings, the Court finds that they are independent of the removal process," Donohue wrote, and thus allowed to proceed.
Ramirez's lawsuit is also seeking forward-looking relief against future arrests and broad relief for all DACA holders.
The federal government has argued he lacks the standing to seek that remedy, but Donohue concluded that isn't at issue yet.
"Whether, and to what extent, Petitioner may be entitled to any of the relief he seeks in this action is difficult to discern at this early stage of the proceedings and, as Petitioner points out, the question of whether he is entitled to the relief he seeks goes to the merits of his claims."
On the question of whether Ramirez should be granted conditional release while his habeas case is considered by the federal court, Donohue sided with the federal government. Even assuming the court has the ability to order his conditional release — an unresolved question, Donohue wrote, in the US Court of Appeals for the Ninth Circuit — the release is only appropriate in "extraordinary cases involving special circumstances or a high probability of success."
Due to the unclear legal consequences of being approved for DACA, Donoue concluded that he could not recommend release now.
"©ourts have not defined the rights that flow from this 'lawful presence' or discussed whether DACA gives rise to greater protection in the form of a constitutionally protected liberty interest," Donohue wrote. "Thus, whether the ICE officers had probable cause to continue questioning Petitioner after they learned he was a DACA beneficiary depends on the scope of the benefits attendant to 'lawful presence' and the exact nature of any liberty interest conferred by DACA."
As such, Donohue recommended that conditional release not be granted to Ramirez while his habeas claim proceeds.
Kevin Lamarque / Reuters
WASHINGTON — On Tuesday evening, the Trump administration's lawyers argued to the federal judge who previously halted enforcement of the original refugee and travel ban that the new executive order, signed by President Trump on March 6, should not be subject to the prior injunction.
Washington Attorney General Bob Ferguson has argued that the Feb. 3 injunction against the original executive order should apply to the two provisions from the original ban that were reinstated, albeit with some changes, in the new executive order, which is due to go into effect at 12:01 a.m. ET Thursday.
Specifically, Washington's lawyers argue the subsections of the new executive order announcing the 90-day halt to travel from a number of majority-Muslim nations and the 120-day halt to the refugee program are virtually the same as those provisions enjoined in the original order.
"Plaintiffs are wrong: this Court’s order, by its plain terms, does not apply to the New Executive Order," Justice Department lawyers argue in a filing before US District Judge James Robart. "And courts routinely hold that relief granted as to prior policies does not extend to new policies that are substantially different."
Washington previously argued otherwise, with lawyers noting, "The key question is whether some of the enjoined policies or conduct continue, and here they plainly do."
Regardless, the administration's lawyers continue, "the Court’s injunction should not be extended to the New Executive Order because the New Executive Order is entirely lawful."
Washington, again, disagrees — joined by several states in an amended lawsuit that specifically challenges the new executive order.
On Tuesday, several large cities — led by Chicago — filed an amici curiae, friends of the court, brief in support of Washington's request that Robart enforce the existing injunction against the new executive order.
The judge announced previously that if a hearing is necessary to decide the matter, he would not schedule it to take place before Wednesday. He has not, as of early Wednesday morning, scheduled any hearing in the case.
In another case before Robart challenging the travel portion of the ban — specifically focused on people approved for immigrant visas — he has scheduled a hearing for 2 p.m. Pacific Time (5 p.m. Eastern Time) Wednesday on the plaintiffs' request for a temporary restraining order. The Justice Department on Tuesday evening also filed its opposition in this case, Ali v. Trump.
The filings in the Washington cases come on the eve of two scheduled hearings in other cases challenging the new executive order — one in federal court in Hawaii, brought by the state, and one in federal court in Maryland, brought by nonprofit organizations.
In the Hawaii case, on Monday, 13 states and the District of Columbia weighed in to support Hawaii's motion for a temporary restraining order against enforcement of the travel and refugee ban sections of the executive order.
Jonathan Ernst / Reuters
GREENBELT, Md. – With President Trump's second attempt at a refugee and travel executive order set to take effect after midnight, a federal judge in Maryland heard arguments on Wednesday morning on challengers' efforts to stop that from happening. Hours later, another federal judge across the country heard arguments on Hawaii's request to halt enforcement.
The executive order, which would temporarily suspend immigration from six countries as well as the US refugee program, will take effect at 12:01 a.m. ET Thursday. Challengers have gone to court in the week and a half since Trump signed the order on March 6 to try to block it.
US District Judge Theodore Chuang didn't rule from the bench after hearing the arguments in Maryland. He said he would try to issue an order later in the day, but wouldn't guarantee it. Chuang didn't signal which way he would rule, but did ask both sides to share their preferences for what he should do if he decided to block at least certain parts of the executive order.
The second hearing, before US District Judge Derrick Watson in Hawaii, took place about five hours after the first ended. He also did not rule from the bench — but promised an order in the case before midnight ET.
A third hearing is scheduled for today in Seattle before US District Judge James Robart on a motion to temporarily halt part of the travel ban in the executive order from taking effect.
A fourth pending request for Robart to enforce his prior injunction — issued as to the original executive order — against the new executive order also is pending, in the case brought by the state of Washington, but no hearing has been scheduled on that request.
With no ruling from Robart on that request by noon Wednesday in Seattle, Washington filed a separate request that the judge issue a new temporary restraining order against the new executive order.
"Because of the grave harms the States and their residents will begin suffering at midnight tonight if Executive Order 13780 takes effect, the States ask that if this Court is going to deny or postpone ruling on the pending motion to enforce the injunction, it grant this motion for temporary restraining order," the lawyers wrote.
The challengers in Maryland — individual visa holders who say they've experienced stigma from the president's actions and would be separated from family trying to travel to the US once the order takes effect, as well as nonprofits that work with refugees — want a nationwide injunction stopping the order from taking effect in its entirety.
A lawyer for the government disputed that any emergency action was needed, but said that if the judge did enter an order, it should be narrow and limited to the individual plaintiffs and certain clients of the nonprofits that sued.
Acting Solicitor General Jeffrey Wall argued that the new executive order "directly, serially" addressed concerns that the US Court of Appeals for the Ninth Circuit had expressed about the first version of the travel ban. He said the latest order made clear that lawful permanent residents and current visa-holders wouldn't be affected, removed a section focusing on Syrian refugees, and also took out a provision that would have prioritized religious minorities once the refugee program resumed. Critics charged that the religious minorities section was aimed at putting Muslim refugees at a disadvantage.
Chuang asked if the changes in the second order were more about addressing due process issues raised the first time around how the president's order would affect visa holders and applicants, as opposed to broader claims that the order violated the First Amendment's Establishment Clause by discriminating against Muslims.
The order draws no religious distinctions on its face, Wall replied, and any allegation that the order nevertheless disparately affected Muslims wasn't a legal argument that the court could consider.
Chuang asked both sides about what he should do with Trump's remarks during the presidential campaign advocating for a ban on Muslim immigration. Omar Jadwat, the director of the ACLU Immigrants’ Rights Project, said the court should consider whatever information a reasonable person would find relevant in exploring the government's purpose in adopting the travel restrictions. That included comments by Trump and his advisers about a Muslim ban, Jadwat said.
"The government never disputes that if you take all of the publicly available evidence together, it shows that purpose," Jadwat said. "Instead, it's asking the court to turn a blind eye to much of the evidence that is apparent to everybody."
Wall countered that Trump's statements as a candidate, as opposed to an elected official with the benefit of guidance from agency officials, were less relevant than what he'd said and done after taking office. The campaign comments were even less on point in looking at the second order, which was drafted in response to concerns raised by judges who looked at the first order, Wall said.
The Maryland case was first filed in early February in response to Trump's original executive order, after a federal judge in Seattle had already issued a nationwide injunction in early February.
Facing unfavorable rulings in several federal courts, Trump on March 6 signed a new executive order that would rescind the earlier order and replace it. The latest version would temporarily halt immigration from Iran, Libya, Somalia, Sudan, Syria, and Yemen (Iraq was removed from the list) for 90 days, but exempts current visa-holders and makes clear that exceptions would be considered.
The new order again would suspend the US refugee program for 120 days – refugees already scheduled to come to the US by March 15 wouldn't be affected – and cut the number of refugees who would be allowed in by more than half, from 110,000 to 50,000. In addition to removing the indefinite halt on Syrian refugees, the new order also removes the section prioritizing claims from religious minorities once the program resumed.
During arguments on Wednesday, Chuang asked another lawyer for the government, Arjun Garg, if the president could set the maximum number of refugees allowed in at zero and still be in compliance with the federal Refugee Act. Garg said that he could, if the president determined that allowing refugees in would be harmful to US interests.
Unlike the January order, the new one was announced 10 days before it would take effect, giving agencies and travelers more time to prepare. There was chaos at airports nationwide in the hours and days after Trump issued his January order, which had taken effect immediately when Trump signed it.
Find background here on the challenges to the new executive order.
Find legal documents here in the four pending requests for orders halting enforcement of the new executive order at BuzzFeed News.
BuzzFeed News; Trump: Getty Images
The strange tale published today by BuzzFeed News of anti-Trump activists duped by a dramatic forgery is the latest sign that the Russia story is veering out of control.
You’d think that what we know would be enough: The Russian government, through open statements on state media and — serious evidence suggests — by hacking the DNC, tried to make Donald Trump president. That campaign helped throw US politics into chaos and elect Trump.
And if that’s not enough, you can examine the allegations in a dossier that BuzzFeed News published in January and in a series of anonymous law enforcement comments to the New York Times, us, and many others, of contacts between Trump aides and Russian officials. Some of those — involving Paul Manafort and Roger Stone — appear to have been confirmed in their outlines. Others remain, as we wrote when we reported on the dossier, unverified.
But the demand on the US left right now isn’t so much for the damning big picture, or the details of what investigators are looking into. It’s for the proverbial smoking gun.
That demand is so clear and intense in the global information market that it was visible to an alleged Italian con man, who went about filling it with a detailed forgery. Progressive activists fell for a hoax that told them exactly what they wanted to hear, paid thousands of dollars for a forgery, and passed it on to journalists.
The demand is so strong that Twitter and cable news are full of the theories of what my colleague Charlie Warzel calls the Blue Detectives — the left’s new version of Glenn Beck, digital blackboards full of lines and arrows.
Meanwhile the actual frontline detectives — congressional investigators — aren’t so sure. “I don’t think the conclusions are going to meet people’s expectations,” one warned BuzzFeed News’ Ali Watkins.
Some of the smartest veteran observers of the strange, dark American relationship with Russia — Miriam Elder, Masha Gessen, and Matt Taibbi — have written recently to suggest that Trump’s critics cool it. Elder wrote that the paranoid search for anyone who has spoken to the Russian ambassador recalls Russia’s own toxic internal politics.
“Russia has become an obsession, cultural shorthand for a vast range of suspicions about Donald Trump,” Taibbi wrote.
None of these writers is an apologist for Vladimir Putin. None is dismissing the possibility of damning contacts or a real conspiracy. All take seriously Russia’s role in the 2016 election, a major historical fact and a blight on Trump’s legitimacy. But it is also a simple fact that while news of Russian actions on Trump’s behalf is clear, hard details of coordination between his aides and Putin’s haven’t emerged.
“A possible conspiracy is a poor excuse for conspiracy thinking,” Gessen wrote.
Trump’s critics last year were horrified at the rise of “fake news” and the specter of a politics shaped by alternative facts, predominantly on the right. They need to be careful now not to succumb to the same delusional temptations as their political adversaries, and not to sink into a filter bubble which, after all, draws its strength not from conservative or progressive politics but from human nature.
And those of us covering the story and the stew of real information, fantasy, and — now — forgery around it need to continue to report and think clearly about what we know and what we don’t, and to resist the sugar high that comes with telling people exactly what they want to hear.
Protesters hold up signs in front of the United States Court of Appeals for the Ninth Circuit in San Francisco, California, on Feb. 7.
Josh Edelson / AFP / Getty Images
WASHINGTON — The federal appeals court that had refused to allow the Trump administration to enforce its original travel ban order while litigation against it proceeded on Wednesday evening issued a follow-up order announcing that it would not consider vacating that decision — despite the fact President Trump has issued a new executive order to replace the first one.
The appellate ruling is a blow to the Trump administration on the facts of the order, but, more than that, it also contained an unusual criticism of Trump's methods of "intimidation" as well.
The decision came shortly after a federal judge in Hawaii issued a temporary order halting enforcement of what Trump called the "watered-down version" of the travel ban executive order.
In the appellate order, the US Court of Appeals for the Ninth Circuit announced that a majority of active judges on the court (there are 25) had not voted for the court to reconsider the Feb. 9 decision over the initial executive order. Such reconsideration — called en banc review — would have meant 11 judges would have considered the matter, as opposed to the 3 who originally heard it.
After a judge of the court requested a vote on whether to rehear the case, the Justice Department had been seeking to have the court grant rehearing en banc so the court could vacate the earlier ruling against granting a stay — called, "vacatur" — due to the fact that the original order is being revoked.
In Wednesday's order, the original three-judge panel — Judges William Canby, Richard Clifton, and Michelle Friedland — went a bit further than simply announcing that en banc reconsideration would not be happening.
"The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration. Vacatur of the stay order is denied," the order stated, citing a US Supreme Court case, U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, for the proposition that "the 'extraordinary remedy of vacatur' is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party."
In other words, the panel wanted it to be made clear that the Justice Department's request was seen as unjustified in these circumstances — when it only changed the policy after it lost in court.
The Wednesday order leaves in place — as the law within the federal courts in all nine states of the Ninth Circuit — a decision that contained some strong language about the limits of executive authority in general and was highly critical of some specific actions of the Trump administration.
Beyond that, however, the decision was also notable for the two separate opinions submitted in the matter. One of the court's liberal judges, agreeing with the decision to let the ruling stand, also highlighted the importance of judicial independence.
"I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them," Judge Stephen Reinhardt wrote.
A conservative judge, while criticizing the appeals court's original decision and its decision on Wednesday, also took time at the end of his dissenting opinion to criticize Trump's attacks on the judiciary — although not by name.
"The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties," Judge Jay Bybee wrote. "It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy."
He was joined in his dissenting opinion by four other members of the appeals court, Judges Alex Kozinski, Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta.
Earlier in the dissenting opinion, Bybee explained why he thought the panel decision was wrong and should be vacated — a roadmap, doubtless, to be employed as the administration proceeds with its defense of the executive order.
"The President’s actions might have been more aggressive than those of his predecessors, but that was his prerogative. Thus, the President’s actions were supported by a 'facially legitimate and bona fide' reason," he wrote in part, citing a US Supreme Court case that the Justice Department has relied upon in its defense of the executive orders.
"Even if we have questions about the basis for the President’s ultimate findings—whether it was a 'Muslim ban' or something else—we do not get to peek behind the curtain. So long as there is one 'facially legitimate and bona fide' reason for the President’s actions, our inquiry is at an end," Bybee concluded.
Although only four judges joined Bybee's dissent, that does not mean only five of the 25 active judges voted for rehearing. Other judges might have voted for rehearing, but then also decided not to join Bybee's dissent. In fact, the order from the court notes that "[f]ilings by other judges may follow."
Read the court's order:
Read Judge Reinhardt's concurrence:
Read Judge Bybee's dissent:
John Moore / Getty Images
WASHINGTON — President Trump's proposed budget announced on Thursday includes $80 million in funding to create 75 more immigration judgeships, a boost in ranks that immigration judges have long pushed for to tackle a backlog of more than a half million cases.
There are 300 immigration judges, out of 374 seats funded by Congress. Trump's budget would provide funding for 449 immigration judges and support staff.
Even before Trump took office and signed executive orders that called for an increase in US border enforcement and ramped up deportation of immigrants in the United States illegally, immigration courts were strained. By the end of January, there were more than 540,000 cases pending. Lawyers reported having hearing scheduled several years out.
There were more than 50 immigration judge candidates at various stages of the hiring process by late February, a Justice Department spokeswoman previously told BuzzFeed News. Immigration Judge Dana Marks, president of the National Association of Immigration Judges, confirmed recent reports that the federal government-wide hiring freeze that Trump ordered when he took office will not apply to immigration judges and court staff.
Although more funded judgeships would be good news for immigration courts, it still could be months or even years before all those seats are filled. Immigration judges and lawyers have told BuzzFeed News that the hiring process can take as long as three years.
"While we welcome the increase of our authorized number from 374 to 449, we remain seriously concerned that even that number will be insufficient over the long run," Marks said in an email to BuzzFeed News. "We are hopeful that this will be just the first step in a thorough assessment of the required resources needed for our nation's immigration courts to function at optimal efficiency and fairness."
A Justice Department spokesperson was not immediately available on Thursday for comment on Trump's budget.
One of Trump's executive orders called for the deployment of immigration judges to the US border to handle cases there. Reuters reported earlier this month that 50 judges would be deployed, although it wasn't immediately clear if those judges would all travel at one time, or in shifts.
Trump's budget would also include funding for 60 additional border enforcement prosecutors. Cases in immigration courts are prosecuted by the US Department of Homeland Security.
Immigration courts are an arm of the US Department of Justice, which is why they're included in the president's budget for the executive branch. The federal judiciary, which includes federal district, appeals, and other courts that are independent of the executive branch, submits its own budget request to Congress.
Former immigration judge Paul Schmidt said in an email to BuzzFeed News that he was troubled by the language the president used in his budget request. The request says that the additional funding for immigration judges "combats illegal entry and unlawful presence in the United States."
"Immigration Courts are supposed to be about due process, fairness, and impartial adjudication, not 'combatting illegal entry and unlawful presence.' That's DHS's job," Schmidt said. "So, the Administration misconstrues the overriding purpose of the Immigration Courts."
Paul J. Richards / AFP / Getty Images
WASHINGTON — The Justice Department on Friday afternoon filed notice that it would be appealing the preliminary injunction halting enforcement of the travel ban in President Trump's second executive order on the topic.
The appeal of the preliminary injunction, issued by US District Judge Theodore Chuang in Maryland, goes to the US Court of Appeals for the Fourth Circuit.
The executive order is aimed at temporarily stopping the refugee program and travel from six majority-Muslim nations and was issued on March 6 after the first attempt faced significant pushback from federal courts.
The injunction by Chuang was the second, and more limited, order issued that halted enforcement of parts of the president's travel ban nationwide.
The first, a temporary restraining order issued by US District Judge Derrick Watson in Hawaii, covers all of sections 2 and 6 of the new executive order — the travel and refugee bans. Chuang's order, on the other hand, only covers section 2© — the specific section halting travel from the six countries for 90 days.
On Thursday, White House press secretary Sean Spicer said the administration would be appealing Chuang's injunction, so Friday's move had been expected.
The decision to appeal the injunction in Maryland — while, per Spicer, only at this time planning to seek "clarification" on the TRO out of Hawaii — is a result of the types of orders issued by the courts earlier this week — but it also appears to be a strategic move by the administration.
A TRO is a limited order that a judge issues until a decision can be made on the request for a preliminary injunction, which in turn remains in place until a court rules on the merits of a case — generally a request that would include a permanent injunction. TROs can be issued without even including both parties to the lawsuit in a hearing (although that was not the case in Hawaii), and they also are not generally appealable. Preliminary injunctions, on the other hand, can be appealed.
So, in one sense, it makes procedural sense that the Justice Department would appeal Chuang's preliminary injunction but not Watson's TRO.
The fact that Watson's TRO covers all of sections 2 and 6 of the new EO, however, means that winning a stay of — or even an appeal of — Chuang's injunction would not enable the Trump administration to enforce the new executive order.
Additionally, in the challenges to the first executive order, the Justice Department successfully argued that a TRO issued from a judge in Washington there was sufficiently similar to a preliminary injunction that the appeals court considered the appeal. The administration appears, for now at least, not to be moving to take similar action against the Hawaii-based court's TRO.
The reason likely is a strategic move. Appeals from Hawaii would go to the US Court of Appeals for the Ninth Circuit, which issued a strong rebuke of the first executive order and has been the topic of significant criticism from Trump. The appeal out of Maryland, on the other hand, goes to the Fourth Circuit — which also contains a majority of judges nominated by Democratic presidents, but has not yet considered either executive order and therefore could be seen as a better possibility for getting a decision upholding the new executive order.
At that point, the administration still wouldn't be able to enforce the new executive order — but it would change the public dynamics and could set up a legal conflict with the Ninth Circuit as the Hawaii case proceeds to a preliminary injunction and appeal, which then could make it more likely that the Supreme Court would take up and resolve this issue. More importantly, under that scenario, the timeline could be such that a ninth justice — the confirmation hearing for Trump's Supreme Court nominee, Judge Neil Gorsuch, is scheduled for next week — would be on the bench by time the case reaches it.
Of course, if the Fourth Circuit rules against the new executive order on appeal, the Trump administration would be back in the same position it was after the Ninth Circuit's decision this past month: Is it worth it to keep fighting — especially when a decision from the Supreme Court, if it took the case, could limit future action as well?
One of the legal teams opposing the ban — the ACLU — was quick to respond to the news.
"President Trump’s Muslim ban has fared miserably in the courts, and for good reason — it violates fundamental provisions of our Constitution. We look forward to defending this careful and well-reasoned decision in the appeals court," Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project and lawyer to the plaintiffs in the Maryland case, said in a statement.
As of now, the Justice Department's opening brief in the appeal is due April 26. It is likely, however, that further action from the parties — in the form of a request for a stay of Chuang's injunction pending appeal and/or a request for an expedited briefing schedule for the appeal — would be coming before that time.
Kena Betancur / AFP / Getty Images
WASHINGTON — A federal appeals court on Saturday rejected a last-minute request to block the Dakota Access Pipeline, just a few days before the company building it says it could be ready to handle a flow of oil.
In a one-page order, a three-judge panel of the US Court of Appeals for the DC Circuit said that the Native American tribe trying to block the pipeline failed to satisfy the "stringent requirements" necessary for an immediate injunction.
The Cheyenne River Sioux Tribe earlier this week filed the request with the DC Circuit seeking emergency action. A federal district judge last week denied a request for an immediate injunction halting progress on the pipeline, prompting the rush to appeal.
According to the latest report filed on March 13 in court by Dakota Access LLC, the company building the pipeline, oil could be introduced into the pipeline on March 20, at the earliest.
A federal district judge in Washington has required the company to file weekly reports on the status of construction. The company's next update is due March 20.
The Cheyenne tribe is arguing that the flow of oil through the pipeline under Lake Oahe in North Dakota would desecrate water used by the tribe in sacred ceremonies. According to the tribe, the oil represents a black snake prophesied to cause destruction.
The tribe contends that the US Army Corps of Engineers' decision to grant the easement needed for the privately-built pipeline to go through federal lands violated the federal Religious Freedom Restoration Act, which generally prohibits the government from burdening a person's religious exercise.
The action by the DC Circuit doesn't end the legal challenges to the pipeline. The Cheyenne tribe could ask a full sitting of the DC Circuit to reconsider the panel's decision, or it could take the issue to the US Supreme Court.
There are also other plaintiffs with different claims still pending against the pipeline. Other Native American tribes are arguing that the US Army Corps of Engineers' actions violated federal environmental and historic preservation laws and ran afoul of trust obligations to protect tribe treaty rights.
In December, the Army Corps of Engineers announced that it would not grant an easement for the pipeline to cross Lake Oahe, saying it would consider whether an environmental review was needed. President Trump reversed course, ordering the Army Corps to expedite consideration of the easement request. The Army announced on Feb. 7 that it would grant the easement.
Attached to Saturday's order, DC Circuit Judge Patricia Millett wrote in a separate concurring statement that she wasn't expressing an opinion about the district judge's findings on the merits of the tribe's religious freedom claim, but concluded that the tribe failed to clear several other legal hurdles for the court to enter an injunction now.
Judges Brett Kavanaugh and Robert Wilkins were also on the order denying the injunction request.
Order in Cheyenne River Sioux Tribe v. US Army Corps of Engineers
Mandel Ngan / AFP / Getty Images
WASHINGTON — The federal judge who halted enforcement of President Trump's new travel and refugee ban on Sunday denied the Justice Department's request that the judge issue a "clarification" about the scope of his order.
As Trump made his way back to Washington from another weekend at his Mar-a-Lago resort, his Justice Department's attempts to defend the president's executive order were met with a short, pointed defeat.
In a filing on Friday night, Justice Department lawyers had argued that, despite the temporary restraining order's language barring enforcement of sections 2 and 6 of the new order — the travel ban and refugee ban sections — "many of the provisions of those sections were not addressed in the briefs that Plaintiffs filed in support of their motion." Because of that, the federal lawyers argued, "It is therefore unclear whether the Court intended for its Temporary Restraining Order to extend to all of those provisions."
On Saturday, lawyers for Hawaii opposed the request.
On Sunday, US District Judge Derrick Watson sided with Hawaii, in a brief, electronic order that did not even wait for the Justice Department to file the reply brief it had previously planned to file.
"[T]here is nothing unclear about the scope of the Court's order," Watson wrote — quoting from the TRO issued earlier in the week: "Defendants ... are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation."
In the one-paragraph order on Sunday, Watson then concluded, "The Federal Defendants' Motion is DENIED."
The Justice Department moves in Hawaii — essentially slowing things down at the trial court level — came even as the department on Friday also had filed a notice of appeal in the case out of Maryland, where a more narrowly focused court order halted enforcement of the travel ban but did not address the refugee ban.
That move sends the issue of the new executive order to the US Court of Appeals for the Fourth Circuit — while the Justice Department appears to be seeking to avoid, at least for now, sending the Hawaii case up to the US Court of Appeals for the Ninth Circuit, which ruled against Trump on the first executive order and has been subject to criticism from Trump since.
Read the electronic order from Judge Watson:
Brendan Smialowski / AFP / Getty Images
WASHINGTON — Federal judges are normally press shy, but a longtime colleague of US Supreme Court nominee Judge Neil Gorsuch spoke up this past week to defend his record.
Judge Harris Hartz has served on the US Court of Appeals for the Tenth Circuit in Denver since 2001. He's been there since Gorsuch joined the court in 2006 — both were nominated for that job by President George W. Bush. Hartz agreed to speak with BuzzFeed News by phone to share a behind-the-bench perspective on President Trump’s first high court nominee.
Hartz disputed criticism from liberal advocacy groups and Democrats in Congress that Gorsuch’s conservative approach to judicial decision-making means he is bad news for women, people of color, the LGBT community, and the environment, among others.
"He’s conservative in the sense that he takes the language of statutes, for example, very seriously. But if by that you mean you always get a conservative outcome, that’s wrong," Hartz said.
Gorsuch’s confirmation hearing before the Senate Judiciary Committee is scheduled to start on Monday. Democrats and outside advocacy groups — still stinging from Republican obstruction last year of Obama’s Supreme Court nominee, Judge Merrick Garland — have highlighted opinions that Gorsuch wrote or joined as raising concerns about how he would think about and vote on key issues. Senate Judiciary Committee Ranking Member Dianne Feinstein’s office released a statement on Friday saying that Gorsuch’s record had the “classic hallmarks of an activist, extremist judge.”
Judge Harris Hartz
US Court of Appeals for the Tenth Circuit
Hartz pointed to a child pornography prosecution the two judges heard in 2015 to illustrate the problems he saw with using past cases to ascribe a broader agenda to Gorsuch. The fact that Gorsuch ruled a certain way in a particular case doesn't mean he is predisposed to rule for or against certain people, Hartz said. The legal questions before the court may demand an outcome that is separate from the underlying issue, he said.
The defendant in the child pornography case was challenging the legality of a search of his email by the congressionally-established National Center
for Missing and Exploited Children. A lower court had rejected the challenge, but Gorsuch wrote an opinion several months later reviving the case.
"Now to say that that means he favors child pornography would be outrageous," said Hartz, who joined Gorsuch’s opinion, as did the third judge on the appeals panel. "He doesn’t. I know I don’t, and I joined the opinion. When you look at the case, you have to see what the issue is."
Hartz said that Gorsuch is hard working — judges judge each other on whether they can keep up with their caseload, and Gorsuch (who regularly uses a standing desk) never had a problem with that, Hartz said — and a strong writer who can explain complex legal issues in a way that the general public can understand. He noted that Gorsuch also is polite, even when he disagrees with another judge.
"The more prominent people we have who engage in civil discourse, polite discourse, the better. I think it raises the level of discussion, and I think that’s very valuable," Hartz said.
Gorsuch is a good listener, Hartz said, but can also be persuasive.
The week before Trump announced Gorsuch as his nominee, Hartz said he was in a meeting with Gorsuch discussing arguments they'd heard. Gorsuch expressed an opinion that Hartz disagreed with.
"I said, ‘For these reasons we need to go the other way.’ And he said, ‘You know that’s a good point, I agree, but I wouldn’t go that far for this reason,’ and he changed my mind on that," Hartz said. "That’s exactly what you want in a colleague, someone who’s willing to change his or her mind and capable of changing your mind."
Hartz said Gorsuch has a good relationship with the other circuit judges. A majority of the 12 active judges on the Tenth Circuit were nominated by a Democratic president; Hartz and Gorsuch, on the other hand, were among the 5 judges on the court nominated by Republican presidents. In remarks at the White House after Trump announced his nomination on Jan. 31, Gorsuch said that “the men and women I’ve worked with at every level in our circuit are an inspiration to me.”
Gorsuch has been spending a lot of time in Washington in the weeks since his nomination, meeting with senators and preparing for his confirmation hearing. He isn't handling any cases while his nomination is pending.
Hartz said that after the nomination was announced, Gorsuch sent an email to his colleagues on the court thanking them for their support — and apologizing for adding to their workload while he was out.
This week will be the time for Gorsuch to make his case to the Senate Judiciary Committee for his nomination — and he’s likely to face questions from Democrats about his significant decisions as a circuit court judge, opinions that Hartz discussed with BuzzFeed News.
Toby Talbot / AP
One of the cases Gorsuch's critics point to is Wilson v. City of Lafayette, in which Gorsuch wrote an opinion in 2013 finding that a police officer who fired a taser at a man who later died was entitled to immunity against an excessive force claim. Gorsuch found that there were enough facts supporting the officer's argument that he was justified in firing the taser. One of Gorsuch's colleagues dissented.
The liberal group People for the American Way cited the Wilson case as an example of Gorsuch's decisions harming "real people." Hartz said that the public can easily misunderstand decisions about immunity in excessive force cases, and that the Supreme Court has set the bar high for plaintiffs to sue police for their actions on the job.
"Those are tough. It’s one thing to say that what the police did, you think is wrong. It's another to say that the law was clearly established” that a reasonable officer would know that his or her conduct was unlawful, Hartz said. “The Supreme Court has been, with large majorities, telling us that you’ve really got to be clearly established before you sue the officer."
Ed Andrieski / AP
Gorsuch twice sided with challengers to the contraception care mandate of the Affordable Care Act. In 2013, a majority of the full Tenth Circuit found that two companies run by Christian owners — Hobby Lobby and Mardel — were likely to succeed on claims that the mandate violated the federal Religious Freedom Restoration Act. Gorsuch joined the majority opinion, and wrote in a separate concurrence that he also would find that the owners individually had standing to sue.
Two years later, in a case known as Little Sisters of the Poor, the contraception care mandate was again before the Tenth Circuit, this time on religious nonprofits' objections to complying with the law and the process for opting out of the coverage requirement. A majority of the full court voted not to reconsider a three-judge panel's decision rejecting the challenge. Hartz wrote a dissent of that vote, which Gorsuch joined.
Critics point to Gorsuch's position in these two cases as evidence that he would favor granting more rights to corporations, and that he could be a threat to Roe v. Wade and more broadly to women's rights.
Hartz said it was unfair to read an anti-woman agenda into Gorsuch's actions. In Hobby Lobby, Gorsuch's concurrence wasn't about women's rights, Hartz said, but rather about whether the stores' owners had standing to sue.
"I don't think it had anything to do with women's rights. Who had standing — that's what he talked about," Hartz said.
In Little Sisters of the Poor, Hartz said that the question of whether the nonprofits had made out a religious discrimination claim was separate from any debate about contraceptive care.
"I would hate to see my opinion as being used as evidence of an anti-female view of Gorsuch. It just isn’t. I don’t think an honest reading of that opinion would lead to that conclusion," Hartz said.
The administrative state
Josh Wood / AP
Some of Gorsuch's written opinions question the high level of deference that courts give to administrative agencies. That has Democrats nervous that Gorsuch would support a scaling back of administrative power, making it harder for agencies such as the Environmental Protection Agency to defend against industry challenges to regulation.
Hartz said that he was on panels in several cases with Gorsuch that involved abuses of power by agencies, which could color a judge's thinking about how much deference the government should get in court.
"One thing I can say with confidence is it’s a principled position. He’s not going to say, ‘Oh, this agency that I like can do whatever it wants and an agency that I don’t like is going to be reined in.’ That's just not the way he approaches the law," Hartz said.
Hartz said that a common theme of Gorsuch's decisions over the years was an aversion of abuses of power.
"That may be by law enforcement, that may be government agencies, by judges, by an employer, it may be by a lawyer. He respects limits on power. His opinions at least, the ones he joins, reflect that," Hartz said.
Aaron P. Bernstein / Getty Images
WASHINGTON — Rep. Eleanor Holmes Norton of the District of Columbia isn't a US senator, but she's hoping President Trump will still come to her for advice about nominees for the city's federal courts and law enforcement agencies.
If history is a guide, though, her role under the new Republican administration will be limited at best.
Norton — the District's lone seated representative in Congress — sent a letter last week to Trump asking him to at least consult her about his nominees for federal posts in the District, even if he doesn't grant her the same level of senatorial courtesy to recommend nominees that she was given by Democratic presidents.
"I believe that both D.C. residents and the nomination process would be well-served by consultation with the only congressional representative in either chamber," Norton wrote. "On behalf of more than 670,000 American citizens who live in the District, I urge you to consider providing me a role in the nomination process."
Presidents typically defer to the home state senators of a particular federal district court to recommend judicial nominees. The White House relies less on home state senators in choosing nominees for federal appeals courts, but those senators can still hold up nominees they don't like through Senate procedure.
The District doesn't have a senator. It has two shadow senators, but they're not officially seated in the US Senate the way that Norton is in the US House of Representatives. Under Democratic presidents, Norton was granted senatorial courtesy to recommend nominees for judgeships, US attorney, and other federal posts. She set up a commission of lawyers to vet applicants, and she would then make recommendations to the president.
The nine judges confirmed to the US District Court for the District of Columbia during the Obama administration were all recommended by Norton. One of those judges, Robert Wilkins, was later elevated to the US Court of Appeals for the DC Circuit.
Under President George W. Bush, Norton wrote in the letter that she wasn't given such broad deference as under presidents Obama and Clinton, but that Bush's White House counsel would still ask for her opinion about whomever the president intended to nominate.
"I request that your administration provide me with at least a consultative role similar to that provided by the Bush administration," Norton wrote. She didn't specify how President George H. W. Bush handled DC nominations, and a spokesperson for her office wasn't immediately available for comment; Norton was first elected to the House in 1991.
Trump hasn't said yet what he plans to do when it comes to DC nominees. A White House spokesperson did not return a request for comment.
Besides federal judges and US attorney, the president also nominates the director of the District's Court Services and Offender Supervision Agency, the US Parole Commission commissioners, and US Marshal for the DC Superior Court, the city's local trial court.