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- 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...
- 03/20/17--15:37: _Dems Launch Their C...
- 03/21/17--09:03: _Trump's Supreme Cou...
- 03/21/17--15:53: _Mitch McConnell Ann...
- 03/22/17--13:03: _Justice Department ...
- 03/22/17--15:44: _Prosecutors Are Ext...
- 03/22/17--15:41: _Here's How The Nati...
- 03/23/17--09:19: _Democrats Will Try ...
- 03/23/17--13:50: _Progressive Group C...
- 03/23/17--14:03: _Appeals Court Sets ...
- 03/24/17--07:48: _Comet Ping Pong "Pi...
- 03/24/17--09:23: _Federal Judge Sides...
- 03/24/17--13:47: _Home Depot Must Fac...
- 03/24/17--15:04: _Trump Says Obamacar...
- 03/24/17--16:26: _Justice Department ...
- 03/25/17--07:01: _Trump Extends A Han...
- 03/26/17--07:35: _President Trump And...
- 03/23/17--09:19: Democrats Will Try To Filibuster Trump's Supreme Court Nominee
- 03/23/17--13:50: Progressive Group Criticizes Black Lawmakers For Meeting With Trump
- 03/24/17--07:48: Comet Ping Pong "Pizzagate" Shooter Pleads Guilty To Weapons Charges
- 03/26/17--07:35: President Trump And America’s National Nervous Breakdown
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.
James Lawler Duggan / Reuters
WASHINGTON — Monday's confirmation hearing for Judge Neil Gorsuch, President Trump's nominee for the US Supreme Court, was in large part about a judge who wasn't even in the room: Judge Merrick Garland, President Obama's blocked Supreme Court nominee.
One after another, Democratic senators used the first day of Gorsuch's confirmation hearing to blast Republicans for refusing to hold a hearing, let alone vote, on Garland's nomination last year for the Supreme Court vacancy that Gorsuch is now poised to fill. Gorsuch sat and listened, mostly in silence, for more than four hours as Democrats repeatedly talked about the other judge they wished were there instead.
"I just want to say I am deeply disappointed that it's under these circumstances that we begin our hearings," Senate Judiciary Committee Ranking Member Dianne Feinstein said in her opening remarks on Monday.
Vermont Sen. Patrick Leahy — the ranking Democrat when Garland was nominated — used his opening statement to call the Republican obstruction of Garland's nomination one of the "greatest stains" in the judiciary committee's more than 200-year history.
Minnesota Sen. Al Franken said Senate Republicans' refusal to hold a hearing on Garland was a "truly historic dereliction of duty." Rhode Island Sen. Sheldon Whitehouse took a jab directly at Gorsuch, saying Garland was "even more qualified than you, and that's saying something."
Monday's hearing was devoted to opening statements from the 20 members of the Senate Judiciary Committee. Gorsuch will answer questions starting on Tuesday. He did give prepared opening remarks at the end of the hearing, saying that in his decade on the bench he'd tried to treat everyone who came before him "fairly and with respect."
Obama in March 2016 nominated Garland — a judge on the US Court of Appeals for the DC Circuit since 1997 — for the Supreme Court a month after Justice Antonin Scalia died. Even before Obama announced Garland as his nominee, Republicans in the Senate, who held the majority, said that they would not act on the nomination, citing the fact that it was a presidential election year.
Democrats on Monday shied away from attacking Gorsuch's credentials — he's a Harvard Law School graduate with a doctorate in legal philosophy who has served on the Tenth Circuit in Denver since 2006.
Beyond attacking the treatment of the nominee who came before Gorsuch, Democrats' opening statements focused on the parts of Gorsuch's record that they said were concerning, such as his writings questioning how much deference federal agencies get in court — get ready for questions on Tuesday about a Supreme Court case known as Chevron. Some also questioned his embrace of an approach to judicial decision-making known as textualism, which focuses on the words of a law under review — to the exclusion of legislative history or other factors.
Hawaii Sen. Mazie Hirono delivered some of the sharpest criticism of the day, saying that in reviewing Gorsuch's opinions, "I have not seen that the rights of minorities are a priority for you." Hirono said that the hearing over Gorsuch's nomination was about "people in this country who are getting screwed every single stinking minute and hour of the day."
Connecticut Sen. Richard Blumenthal said that in light of Trump's attacks on the judiciary in recent weeks, Gorsuch had a "special responsibility" to defend the courts' independence at his hearing.
"It isn't enough to do it in the privacy of my office, or my colleagues', behind closed doors. I believe that our system really requires and demands that you do it publicly and explicitly and directly," Blumenthal said, recalling his earlier mention of comments Gorsuch had made to him about attacks on the judiciary.
With Republicans in control of the Senate, Democrats don't have the votes to block Gorsuch if the committee splits along party lines. Democrats could try to filibuster Gorsuch, which — if they succeed — would force Republicans to decide whether to alter Senate rules to defeat that effort and put Gorsuch on the bench.
Jonathan Ernst / Reuters
WASHINGTON — Asked if he would have any trouble ruling against President Trump, US Supreme Court nominee Judge Neil Gorsuch said on Tuesday that he would have "no difficulty" ruling for or against any person.
Even Gorsuch himself called it a "softball" question, answering that he would make decisions "based on what the laws and facts in the particular case require."
That question, from Senate Judiciary Committee Chairman Chuck Grassley, kicked off the second day of Gorsuch's confirmation hearing. Gorsuch early on stressed his commitment to judicial independence, twice talking about how there are no Democrat or Republican judges.
Later, Vermont Sen. Patrick Leahy asked Gorsuch about Trump's contested executive orders temporarily blocking travel from certain Muslim-majority countries and suspending the US refugee program. Gorsuch said that the Constitution guaranteed the free exercise of religion and due process — and that the Supreme Court had held that undocumented immigrants had due process rights — but that it would be "grossly improper" for him to say how he would rule in a specific case.
Leahy asked if the president's national security determinations could be reviewed by a court.
"Senator, no man is above the law," Gorsuch replied, a line that he would repeat several times, at one point specifically saying that it was true for the president of the United States.
The question of whether Gorsuch would show independence from the president who has nominated him became a recurring theme in the opening hours of what is expected to be a long day of questioning for the nominee.
Trump said during the campaign that he would choose a justice in the same conservative vein as the late Justice Antonin Scalia, and specifically said he would nominate someone who would reverse Roe v. Wade. Gorsuch said he was aware of discussion during the presidential campaign about litmus tests — he did not mention Trump by name — but said he did not believe in litmus tests for judges.
"I wasn't about to become party to such a thing," Gorsuch said. He said later that at no time during the nomination process did anyone ask him to make any commitment or promise to rule a certain way in a case.
Asked specifically about Roe v. Wade, Gorsuch said he recognized it as court precedent, but avoided discussing whether he agreed or disagreed with it. He gave a similar response to questions about other big Supreme Court decisions, such as the Heller case about the Second Amendment right to keep firearms in the home. Pressed by Ranking Member Dianne Feinstein, Gorsuch acknowledged that Roe had been reaffirmed many times.
Later, Sen. Lindsey Graham raised the question directly, asking, "Did Trump ask you to overrule Roe v. Wade?" When Gorsuch said no, Graham asked what he would have done if Trump had done so.
"Senator," Gorsuch replied, "I would have walked out the door."
Gorsuch told the committee that he did not get any advance notice from Trump's campaign last year that Trump, then a candidate, planned to include him on his second short-list of possible Supreme Court nominees.
Gorsuch said he learned the news just after having breakfast with a legal scholar who coincidentally had been asking him how he felt about the fact that Trump hadn't included him on his first Supreme Court list. Gorsuch said he replied at the time that he was content with his life in Colorado; he's served on the US Court of Appeals for the Tenth Circuit in Denver since 2006.
Ed Reinke / AP
WASHINGTON — Senate Majority Leader Mitch McConnell beat the White House to announcing President Trump's second judicial nomination.
In the midst of the confirmation hearing this week for Trump's Supreme Court nominee, McConnell's office got word from the White House that Trump had selected his first lower court nominee — a judge long supported by McConnell.
Several Kentucky reporters said they received a version of a White House news release from McConnell's office on Monday evening — along with the senator's comments — announcing Judge Amul Thapar as Trump's nominee for a vacancy on the US Court of Appeals for the Sixth Circuit.
But the White House didn't put out a press release on Monday. With no fanfare, the White House announced Thapar's nomination late in the morning on Tuesday. The news release included a brief biography and no statement from Trump. There were some small wording changes between the version that McConnell received and sent out and the release that the White House put out on Tuesday.
BuzzFeed News reported earlier this month that Thapar, who was on Trump's Supreme Court short list, was a frontrunner for the Sixth Circuit seat.
Thapar — a judge on the US District Court for the Eastern District of Kentucky since 2008— has long had support from McConnell, who introduced Thapar at confirmation hearings when he was nominated to the Kentucky district court and, before that, when he was nominated to serve as a US attorney in Kentucky.
McConnell, in a statement, called Thapar "my friend," and said that he looked forward to his confirmation.
While the first nomination of a lower court judge came about under somewhat unusual circumstances, the announcement about Thapar gets Trump's second judicial pick on the board. There are 122 other vacancies on the district, circuit, and other federal courts — excluding the seats that Gorsuch and Thapar would fill if confirmed.
Although the White House's priority as soon as Trump took office was the Supreme Court vacancy left by the death of Justice Antonin Scalia in February 2016, Trump administration officials have begun preparing for lower nominees, seeking some input and receiving recommendations from senators.
Presidents have handled the rollout of their first lower court nominees in different ways. President George W. Bush announced the nomination of his first 11 lower court nominees at a White House ceremony in May 2001. President Obama in March 2009 put out a press release about his first pick, Seventh Circuit Judge David Hamilton, that included a statement from the president and noted the bipartisan support Hamilton had from his home state senators.
Obama was criticized by liberals for not acting fast enough to fill vacancies in his first term when he had a Democratic majority in the Senate, setting the stage for Republicans to successfully block his nominees once they took control. Republicans are hoping Trump learns from that history.
Thapar is one of the 21 people who Trump said during the presidential campaign last year he would consider for the Supreme Court. Thapar made history when he was confirmed to the district court in Kentucky, becoming the first South Asian American judge on a federal district or appeals court.
Lawyers in Kentucky say that Thapar is well-respected and tough to pigeonhole ideologically, although one did describe him as a strict constructionist — a conservative approach to judicial decisionmaking that focuses on the text of a particular law at issue.
Thapar's office declined to comment on Tuesday about the nomination.
Kamil Krzaczynski / Reuters
WASHINGTON — Nearly a week after a federal district court in Maryland issued a preliminary injunction against the Trump administration's 90-day travel ban for people coming from six majority-Muslim nations, the Justice Department presented a mixed message to the federal appeals court about what it wants next for the case.
The Justice Department told the US Court of Appeals for the Fourth Circuit on Wednesday that it will be asking the court to put on hold the lower court ruling against part of President Trump's second attempt at the travel-related executive order while the government appeals the decision.
In the same filing, though, the department recommends that the court not rule on the department's coming request for at least two weeks.
The Justice Department lays out an unusual request. They're asking for an expedited and full briefing on the merits of the appeal to be done at the same time as the briefing on the forthcoming stay request. The department is asking for that briefing to be completed before the court rules on the stay request.
Typically, the party appealing a ruling asks for a stay pending appeal in advance of the appeal itself — it's a request for the court to put on hold a ruling during the appeals process. By intertwining the stay request with the merits of the appeals process, it's not clear why the court would need to rule on the stay request.
The department filed a notice on appeal on March 17, at which time the appeals court had issued an order setting the default timeline for the case to proceed. That timeline would mean the federal government's opening brief would be due April 26 and briefing wouldn't be completed until early June. The Justice Department on Wednesday asked for that to be sped up, with briefing completed in the case by April 5.
Shortly after the Justice Department filed the request, the Fourth Circuit asked for the plaintiffs in the case to respond to the request by the end of the day.
The filing comes as the Justice Department appears to be interested in moving forward on the Maryland case — brought by nonprofit refugee groups and individuals — even as it has not sought to appeal a more broad order out of Hawaii halting enforcement of both the travel and refugee provisions of the executive order.
After all that, the Justice Department has still not yet filed the actual request for a stay pending appeal at the Fourth Circuit. (By comparison, regarding the first travel ban, the Justice Department filed its request for a stay pending appeal with the appeals court less than 24 hours after the district court issued the order halting enforcement of the executive order.)
Even more confusingly, all of this is happening while the Hawaii order remains in effect. And so long as the temporary restraining order issued by the federal district court in Hawaii remains in effect against both the travel and refugee bans, a stay of the injunction in Maryland would have no effect on whether the Trump administration can enforce the travel ban.
So what kinds of factors could be driving this decision?
Appeals from Hawaii courts go to the US Court of Appeals for the Ninth Circuit, which ruled against the Trump administration's request for a stay pending appeal on the first executive order and has received Trump's disdain in public statements since. The Fourth Circuit — which includes Maryland — has yet to rule on either executive order.
The strategy from the Justice Department appears to be getting a ruling on the merits from the Fourth Circuit — with the hope of a ruling in the administration's favor — before the Ninth Circuit has a reason to rule on the new executive order.
Even if the Justice Department does succeed at the Fourth Circuit, the administration still wouldn’t be able to enforce the new executive order. But if it did, that could change the public dynamics and also could set up a legal conflict with the Ninth Circuit as the Hawaii case proceeds to a preliminary injunction and appeal. That 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 expected to end on Thursday — would be on the bench by time the case reaches it.
Police detain a demonstrator on January 20, 2017
Zach Gibson / AFP / Getty Images
WASHINGTON — Prosecutors are extracting data from more than 100 locked cell phones seized during arrests in downtown Washington, DC, on President Trump's Inauguration Day, according to court papers prosecutors filed on Wednesday.
Prosecutors said they had search warrants to pull data from the phones, which were taken from individuals arrested on Inauguration Day, including some who were not indicted. All of the phones were locked, according to the government, "which requires more time-sensitive efforts to try to obtain the data." But the filing appeared to indicate that they were successful in accessing information on the phones.
There are 214 people facing a felony rioting charge in connection with demonstrations on Jan. 20 that turned violent and, according to prosecutors, involved more than $100,000 in property damage. A handful of defendants are also facing separate charges for destruction of property and assaulting police.
According to the filings on Wednesday, the government plans to produce the information it collects from the seized phones to the defendants by way of an electronic database that would be made available to defense counsel. The extracted data includes irrelevant personal information, prosecutors said, so they're seeking an order from the court that would prohibit defense lawyers from copying or sharing information unless it's relevant to defend their client.
A number of defendants filed requests after they were arrested asking the judge to hold a hearing on any requests by the government for search warrants for electronic devices or social media accounts. The judge overseeing all of these cases denied those requests, saying that if defendants believed the government carried out an illegal search, they could ask the court later to suppress information.
Some defendants have also been filing motions to dismiss the charges against them, arguing that the indictments aren't specific enough in tying individuals to particular acts of rioting. Other defendants are arguing that the Justice Department should be disqualified because the protests were against Trump, who is now the head of the executive branch. The government has not yet responded to these motions.
Defendants have been coming to court in groups over the past few weeks for arraignments. Prosecutors on Wednesday proposed formally dividing the defendants into at least four categories for future trials, based on the type of conduct they were accused of, the seriousness of the alleged offenses, and the available evidence that could apply to groups of people.
Christopher Mutimer, a defense lawyer representing one of the defendants, told BuzzFeed News by email on Wednesday that he would oppose efforts by the government to hold joint trials.
"These cases should be tried individually in a manner that protects each individual defendant's constitutional rights," Mutimer said. "Not in groupings that make the trials most convenient for the government. Grouping individuals for trial creates a danger of wrongful convictions based on guilt by association."
Arraignments are scheduled through early April, and then follow-up hearings are set starting in the middle of the month, when the judge is likely to begin addressing any evidence-related issues and motions.
The incoming Trump administration was "not jazzed" when the National Park Service retweeted information critical of the president during his inauguration, according to internal emails obtained by BuzzFeed News, and initially ordered the agency to not tweet that entire weekend.
On Jan. 20, the day Trump was sworn in as the 45th president of the United States, the National Park Service (NPS) retweeted images showing Trump's smaller crowd size compared with Barack Obama's inauguration audience. Another retweet noted the absence of policy areas on the new White House website.
A draft NPS briefing statement said it's unclear how those tweets were retweeted. The briefing statement said the agency suspected its Twitter account may have been "compromised," possibly by a former NPS employee.
"Using Twitter's account dashboard, which includes a list of IPs and OS used for recent account access, we traced the IP address used for the two questionable posts to an ISP in the San Bruno, CA, area and checked all possible NPS social media ponts [sic] of contacts in that area. None indicated that they had been active on NPS Twitter accounts on January 20."
The briefing paper also notes that multiple people have access to "@natlparkservice account credentials." Those individuals were ordered to change their Twitter and Facebook passwords.
Still, the retweets turned NPS into internet folk heroes and resulted in tens of thousands of new followers. A flurry of news stories attributed the lockdown to the new Trump administration and reported that the White House banned the NPS from tweeting.
In an email sent shortly after 5 p.m. on Jan. 20 to the NPS and Department of the Interior officials — the department oversees the NPS — Larry Gillick, the department's deputy director of digital strategy, informed his colleagues that he had just met the new White House communications director.
“Things went well,” Gillick said. “And then someone inadvertently tweeted an unwise and unflattering RT [retweet] about the administration to the public. No doubt this was done in error. That said, the new leadership is not jazzed.”
Gillick then told his colleagues that the Trump administration ordered all Department of the Interior offices and agencies under its purview not to tweet throughout the inauguration weekend until new guidance was issued the following Monday.
"The new administration says that the Department and all Bureaus will not tweet this weekend and must wait for guidance before returning to Twitter. Such guidance is not expected until Monday at the earliest," Gillick wrote. "Please make sure that any scheduled tweets are no longer scheduled."
“TLDR: I’m not tweeting, we’re not tweeting and none of our people are tweeting. Discussion will continue next week,” Gillick added.
Another email, however, suggests that the Trump administration never intended the NPS's Twitter account to be locked down.
"Apparently a huge miscom [miscommunication] going on. They (new team) never intended for a full Twitter shutdown," wrote Thomas Crosson, NPS's public affairs chief, in a Jan. 21 email sent to April Slayton, the agency's assistant communications director.
The emails are contained in 1,300 pages of internal communications the NPS and Interior released to BuzzFeed News and Ryan Shapiro, a doctoral candidate at MIT and research affiliate at the Berkman Klein Center for Internet & Society at Harvard University. (Read all the emails here and here.)
“TLDR: I’m not tweeting, we’re not tweeting and none of our people are tweeting. Discussion will continue next week.”
Once the Twitter "stand down" directive was widely distributed internally to Interior and NPS staff, details about it were leaked to the media and it was characterized by NPS employees as a “ban” by a hostile Trump administration. Once the news broke, the NPS was bombarded with media inquiries. The agency tried to quickly gain control of a runaway news story and an official offered to assist White House press secretary Sean Spicer with any "corrective messaging."
The emails and a few text messages included in the cache laid bare the “emergency” situation that erupted after it was disclosed that Trump personally called acting NPS Director Michael Reynolds and demanded photographs from the agency to support his statements about the record crowd size.
“Tami – I have a wh [White House] emergency regarding pictures,” Reynolds wrote in an email to Tami Heilemann, a photographer at the Department of the Interior. Reynolds also directed the head of NPS communications to assist.
“Tami, we are to send to Sean Spicer at White House direct. They want your info etc. but I will find out about what more they need. He Spicer might want to talk to you...” Reynolds wrote on the morning of Jan. 21.
That day, Spicer held his first news conference. Behind him were two Trump inauguration photographs he received from the NPS that he said prove that the swearing-in was the most viewed in history and challenged the media to prove him wrong. Two weeks ago, the NPS released hundreds of official inauguration photographs to BuzzFeed News that did just that.
Meanwhile, NPS employees set up a Facebook group and noted that the offending retweets were “fact based” and not partisan. Rebecca Matulka, the deputy director of digital at the Interior Department, in a Jan. 20 partially redacted email, said that the retweets were not helpful and “spreads possible misinformation.”
Another email from Matulka shows that she reached out directly to Twitter to report a "problem" with the NPS's Twitter account. The email doesn't say what the problem was but shows Matulka spoke on the phone with a "Bridget" at Twitter about the issue.
The emails make clear that some Interior and NPS employees were angered by the directive to refrain from tweeting and they noted that the use of Twitter is how information about emergencies — such as inclement weather and natural disasters — is communicated to the public in various states. Other employees were upset that it was characterized by their colleagues as a conspiracy to silence them.
“FYI, this directive yesterday caused some concern in our offices around the country,” an Interior Department spokesman wrote in one email, quoting another colleague’s email. “The perception was that this was a government-wide halt ordered by the administration, rather than Interior-specific direction as a result of specific problematic ac ions fueling concern that there was some scheme afoot to silence federal bureaus in their social media activities. A little more information would have gone a long way to calming those fears and stopping the wild assumptions.”
Asked about the disclosures that the White House ordered the ban, Spicer told BuzzFeed News, "I believe they had violated their standing social media protocols and practices."
In subsequent emails, staffers clarified that accounts that relayed public safety information, like USGSVolcanoes and USGSBigQuakes, were exempt from this freeze. And eventually, after news reports and tweets cheered on the NPS, the temporary ban was lifted and new guidance was issued.
But NPS and Interior staff were unsure what to tweet about.
“Please get a tweet up. Any idea on what topic – it’ll get a lot of scrutiny no doubt?” wrote Megan Bloomgren, who was newly tapped by the Trump administration to work at the Interior Department, in a Jan. 21 email to Crosson, the NPS’s public affairs chief.
“Will be something safe,” Crosson said.
It was an image of a bison and an apology.
This is a developing story. Check back for updates and follow BuzzFeed News on Twitter.
Read the emails here:
Jonathan Ernst / Reuters
WASHINGTON — Senate Minority Leader Chuck Schumer announced on Thursday that Democrats will try to mount a filibuster against President Trump's nominee for the US Supreme Court.
The move will force Republicans to find a supermajority of 60 votes to advance Judge Neil Gorsuch's nomination to a confirmation vote. If they can't, Senate Majority Leader Mitch McConnell and the Republicans will have to decide whether to take the dramatic step of changing the vote threshold and essentially eliminating the filibuster.
The news came in the midst of the confirmation hearing for Gorsuch before the Senate Judiciary Committee. Schumer made his announcement from the Senate floor as members of the judiciary committee heard from witnesses for and against Gorsuch's nomination. (Gorsuch finished his testimony on Wednesday evening and wasn't at the hearing on Thursday.)
It takes a 60-vote supermajority to end a filibuster over a Supreme Court nominee, if mounted, and move to a confirmation vote. This cloture vote would end debate on the nomination. If Republicans don't have the votes, though, they could attempt to change the rules — the so-called "nuclear option." If that rule change is made, going forward it would only take a simple majority to advance a high court nominee.
Senate Democrats invoked the nuclear option in November 2013 to change the supermajority rule for lower court nominees, in order to push through President Obama's nominees to the US Court of Appeals for the DC Circuit. The effort was successful in getting Obama's nominees confirmed, but it also means that it is now harder for Democrats to block Trump's nominees to the lower federal courts.
Schumer announced the move by highlighting that recent past Supreme Court nominees reached a 60-vote threshold.
"To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes we ought to change the rules I say: if this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees, and President Bush’s last two nominees, the answer isn’t to change the rules – it’s to change the nominee," Schumer said in his prepared remarks on Thursday.
Noting that Schumer had announced he would attempt to block any nominee before Gorsuch was even nominated, a McConnell spokesperson pushed back.
"After spending much of last year lamenting the consequences of a vacancy on the Supreme Court, he’s now arguing to keep the seat vacant for the next four or eight years. Try to figure that one out," Don Stewart told BuzzFeed News via email. "I guess #WeNeedNine only applies when there’s a Democrat president."
Stewart also pushed back against Schumer's claim of the 60-vote "bar," noting that the norm is not requiring a cloture vote on Supreme Court nominations.
"Historically, there are just simple up-or-down votes [on Supreme Court nominees]. Yes, Dems took the unprecedented step of attempting a partisan filibuster of Justice Alito. But that was the anomaly," he said, highlighting that Justice Clarence Thomas was confirmed with 52 votes — and no cloture vote.
Nonetheless, several Democrats on Thursday announced plans to oppose Gorsuch and to vote "no" on cloture, including Pennsylvania Sen. Bob Casey, Oregon Sen. Ron Wyden, and Vermont Sen. Bernie Sanders. At least one Democrat, West Virginia Sen. Joe Manchin, has said he will not support a filibuster, according to Yahoo News.
Asked about Schumer's plans at Thursday's press briefing, White House press secretary Sean Spicer deferred to the Senate leader.
"I am not going to start to tell Sen. McConnell what to do from here," Spicer said.
Additional reporting by BuzzFeed News legal editor Chris Geidner.
Jim Watson / AFP / Getty Images
WASHINGTON — A progressive group urging primaries for any Democratic lawmaker who does not do everything they can oppose Donald Trump on Thursday slammed a high-profile meeting between black lawmakers and Trump as "shocking."
#WeWillReplaceYou also panned a statement by the chair of the Congressional Black Caucus chair that the largest Democratic caucus and President Trump had shared goals. Richmond told reporters Trump indicated he wanted to have the meetings regularly.
"I don't how there can be shared goals with a president who in two months has directly cut services and called for more financial cuts or the complete elimination of programs that protect the black people in the most need in this country," #WeWillReplaceYou co-founder Jessica Pierce told BuzzFeed News.
"I will tell you that it was a meeting where both sides listened, and we were very candid about disagreements," CBC chair Rep. Cedric Richmond told reporters. "But the surprising part was that when we talked about the goals, there were more [similarities] than there were differences."
In an email to BuzzFeed News, a spokesperson for the CBC said leadership met with President Trump to push him on matters of affecting black Americans, armed with a policy paper titled, "We Have A Lot To Lose."
"We understand that the policies and programs the president is promoting will hurt some of the most vulnerable African Americans across the country. This is exactly why we accepted the president’s request to meet, talked with him for nearly 45 minutes about our concerns, and offered 130-pages of alternative policy solutions."
#WeWillReplaceYou is a project of the group All of Us, and an effort to channel grassroots energy into shaping Democratic politics. "Donald Trump is a threat to the American people and everything we believe in," the group's website read in an appeal to supporters. "Millions are rising up in resistance, but too many Democrats have been enabling and collaborating with him instead."
But opposing Trump at all costs has proven a quandary for some Democratic lawmakers. Some believe it's part of their responsibility to engage the president on any number of topics, or that it's in the best interest of their constituents to vote for his cabinet nominees, or work with the White House see through big projects like an infrastructure bill.
Criticism of black leaders cozying to the administration have happened at the grassroots level, but Thursday marked one of the first times national progressives leading the Trump resistance singled out black lawmakers as out of touch with the movement against Trump.
"The leaders of the CBC need to wake up and pay attention," said Pierce. "They're posing for pictures in the Oval Office and we need them to put pressure on the President and fight for policy that reflects the needs of black people."
Carlos Barria / Reuters
WASHINGTON — A federal appeals court in Richmond, Virginia, will hear arguments over part of President Trump's revised travel executive order on May 8 — later than the Justice Department had sought, but sooner than the plaintiffs challenging the president's action proposed.
The Justice Department is appealing a preliminary injunction that halts enforcement of the 90-day ban on travel from six Muslim-majority countries. The injunction, from a federal court in Maryland, halts enforcement of section 2© of the executive order and was issued by US District Court Theodore Chuang more than a week ago.
The Justice Department, in a Wednesday court filing, had asked for the court to combine briefing on its forthcoming motion for a stay pending appeal with the briefing on the merits of its appeal of Chuang's order. Under their proposal, briefing would have been completed by April 5, with oral arguments to follow at "the earliest possible opportunity" after then.
The plaintiffs in the case — individuals and nonprofit refugee organizations — opposed combining the briefing schedules, setting forth a proposed timeline that would have put off oral arguments on the merits until at least late May.
The US Court of Appeals for the Fourth Circuit on Thursday declined the Justice Department's request to combine the briefing schedules, setting the stay request briefing schedule for the next two weeks and ordering the merits briefing to take place on an expedited schedule, finishing by April 21.
Then, at 1 p.m. May 8, a three-judge panel of the Fourth Circuit will hear arguments in the government's appeal.
All of this is taking place alongside the more broad order out of Hawaii, which is blocking enforcement of all of sections 2 and 6 of the new executive order — the travel and refugee bans, respectively. That nationwide order remains in effect, and the Justice Department has not attempted any appeal of the temporary restraining order issued in the case (a step the department took against a TRO issued in response to the first iteration of the executive order).
This is a developing story. Please check back at BuzzFeed News for more.
Edgar Maddison Welch surrenders to police Sunday, Dec. 4, 2016.
Sathi Soma / AP
WASHINGTON — The North Carolina man charged with bringing loaded guns into a Washington, DC, pizza restaurant to investigate the "Pizzagate" conspiracy theory pleaded guilty on Friday to two weapons charges.
As part of a plea deal, prosecutors agreed to drop a firearm possession charge against Edgar Maddison Welch, 28, that carried a mandatory minimum sentence of five years in jail and a maximum sentence of 15 years in jail.
The plea deal did not include an agreement about what each side would seek at sentencing. The two weapons charges that Welch did plead guilty to — one federal, one under DC law — each carry maximum sentences of 10 years in jail, but according to the plea agreement Welch faces estimated sentencing guidelines of 18 to 24 months for the first charge and 18 to 60 months for the second charge.
Welch agreed to pay $5,744 in restitution to the restaurant, Comet Ping Pong, to cover damage to a computer, a door and a lock, and a ping pong table. According to court papers, he caused the damage when he fired several shots inside the restaurant — when he failed to open a locked door with a butter knife, he fired at it with an AR-15 assault rifle — and moved furniture around. He'll also have to forfeit three firearms and a box of ammunition to the government.
A sentencing hearing is scheduled for June 22.
Welch allegedly walked into Comet Ping Pong, a restaurant in northwest Washington, around 3 p.m. on Dec. 4 carrying a loaded AR-15 rifle and a .38 caliber handgun. He later told police that he was investigating reports he’d seen online that the restaurant was the site of a child sex slave ring, according to charging documents.
Employees and customers inside the restaurant, including children, fled when Welch entered, according to charging documents. An employee who was outside said that he heard three loud bangs, and that when he came inside Welch pointed the rifle at him, an allegation that Welch initially denied but admitted as part of his plea. No one was injured. Welch told police that he fired the rifle to try to open a locked door, and left the restaurant when he found no evidence of child sex trafficking, prosecutors said.
He pleaded not guilty in December to federal and local gun charges. He's been in jail since his arrest, and will stay in jail until his sentencing.
Welch spoke little during the hearing, except to say that he understood the charges against him and the plea deal he had reached with the government. His lawyer, federal public defender Dani Jahn, and prosecutors declined to comment on the agreement after the hearing.
Read the plea agreement in US v. Edgar Maddison Welch:
Jonathan Ernst / Reuters
WASHINGTON — President Trump got his first court win on Friday in the challenges to his new travel and refugee executive order, as a federal judge ruled against a lawsuit backed by the Council on American–Islamic Relations in Virginia.
US District Judge Anthony Trenga, in a 32-page opinion, found that the plaintiffs in the case — Linda Sarsour v. Donald Trump — were not likely to succeed in their challenge to the March 6 executive order barring travel from six Muslim-majority countries for 90 days and temporarily halting the refugee program.
Due to the previously existing orders from other courts barring enforcement of both provisions nationwide, however, Friday's ruling does not, effectively, change anything on the ground.
Specifically, Trenga ruled that the challenge to the executive order was unlikely to succeed on the statutory claim that the order violates the Immigration and Nationality Act, and the constitutional claims that it violates the Establishment Clause or the Equal Protection Clause.
"In determining whether the Plaintiffs have made the required showing, the issue is not whether EO-2 is wise, necessary, under- or overinclusive, or even fair. It is not whether EO-2 could have been more usefully directed to populations living in particular geographical areas presenting even greater threats to national security or even whether it is politically motivated," Trenga wrote.
The legal issue before him, Trenga wrote, "is whether EO-2 falls within the bounds of the President’s statutory authority or whether the President has exercised that authority in violation of constitutional restraints."
Trenga placed great weight on the significant changes made between the first and second executive orders on the issue and concluded that the executive order likely did fall within the president's authority. While he did take Trump's campaign and other statements into account, in addition to those by advisers like Stephen Miller, Trenga concluded that the new order is clearly enough within the president's authority that the statements do not render it unconstitutional.
"[T]he substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that
Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose," he wrote.
Two high-profile provisions of the executive order — the 90-day travel ban and 120-day refugee ban — remain unenforceable currently. That's due to a temporary restraining order issued by a federal court in Hawaii and a preliminary injunction — currently being appealed by the Justice Department — issued by a federal court in Maryland.
In a sign of the difficulties faced by the administration in defending the executive order, however, a new lawsuit was filed in federal court in Washington, DC, on Friday morning by the Universal Muslim Association of America and two anonymous individuals — challenging the temporary travel ban, but also challenging the Iraq-specific section of the executive order (Section 4).
Read Judge Trenga's opinion:
Joe Raedle / Getty Images
WASHINGTON — Home Depot and one of its garden services vendors must face a lawsuit filed by the family of a woman killed by her supervisor — a man with an alleged history of sexual harassment and abuse — a federal appeals court ruled on Friday.
The US Court of Appeals for the Seventh Circuit found that given the supervisor's escalating pattern of harassment and intimidation of the victim, Alisha Bromfield, a reasonable jury could find that the companies could have foreseen that he would turn violent. Judge David Hamilton, who wrote the opinion, connected Bromfield's case to others in which women were killed, hurt, or threatened by men who demonstrated similar patterns of harassing behavior.
"Every life lost to brutality is unique, each family’s hell a private one. We do not diminish that truth when we repeat that Alisha’s story is an old story that has been told too many times. Its ending is both shocking and predictable. Alisha’s family is entitled to try to prove its truth," Hamilton wrote.
Bromfield and Cooper were employees of the garden services vendor, and worked on-site at Home Depot stores. In 2012, Bromfield attended a wedding with Cooper after he threatened to fire her or reduce her hours if she didn't go, according to the lawsuit filed by Bromfield's mother. Cooper killed and then raped Bromfield after she refused a relationship with him. She was nearly seven months pregnant at the time, and the baby died as well. He is serving two consecutive life sentences in jail for the crimes.
According to the lawsuit, Bromfield repeatedly complained about Cooper's harassing and abusive behavior to managers at the garden services company and Home Depot knew or should have known about Cooper's abusive behavior towards Bromfield while they were working on-site. Cooper also had a history of harassing female subordinates, according to the Seventh Circuit's decision.
Home Depot and Grand — Grand Service LLC and its parent company Grand Flower Growers Inc. are both named as defendants — argued that they couldn't be held liable because the murder took place away from work and wasn't related to Bromfield and Cooper's employment. Even if there was a connection to the workplace, the companies said, they couldn't have reasonably foreseen this kind of violent behavior.
The Seventh Circuit rejected those arguments, reversing a lower court judge who dismissed the case. Although Bromfield and Cooper weren't at work when the murder took place, the court said, Cooper nevertheless used his "supervisory authority" — authority granted to him by Home Depot and Grand — to threaten Bromfield. Courts increasingly are open to holding companies liable for abuses of power by supervisors, even if it happens outside of work, Hamilton wrote. He was joined in his decision by Chief Judge Diane Wood and Judge Ilana Rovner.
As to whether Cooper's actions were foreseeable, the judges found that the lawsuit alleged enough details of escalating behavior by Cooper, from "private inappropriate comments and touching" to verbal abuse and physical intimidation.
"Hearing such evidence, a reasonable jury could easily find that the employers could and should have foreseen that Cooper would take the small further step to violence," Hamilton wrote.
The court also criticized Home Depot and Grand for minimizing Cooper's behavior toward Bromfield at work in order to argue that they couldn't have known he would hurt her.
"Anyone who saw Cooper, for example, 'throwing and slamming items in the garden center and … parking lot while screaming obscenities,' could have easily concluded that Cooper either was dangerous because he had lost control of himself or was trying to frighten Alisha," Hamilton wrote.
A spokesman for Home Depot told BuzzFeed News that the company is reviewing the opinion and considering its options. Although the Seventh Circuit said that Home Depot and Grand "jointly employed" Cooper, the spokesman said that Home Depot was not Cooper's employer.
"Regardless of what we decide to do, our deepest sympathies remain with the family," the spokesman said.
A Grand representative and a lawyer for the company did not immediately return requests for comment.
Kristin Barnette, the lawyer who argued in the Seventh Circuit for Bromfield's mother Sherry Anicich, said in an interview that they were pleased with the decision and "are looking forward to continuing to advocate on behalf of Alisha, her unborn daughter baby Ava, and Alisha's family."
"Although the facts of this case are unique, the issues relating to the duties that employers are expected to owe their employees are a common element bringing all of these cases together in this body of law," Barnette said. She said that Hamilton "very well stated ... the overall tragedy of the circumstances and how common it is nowadays in this country."
Read the opinion in Anicich v. Home Depot:
Pablo Martinez Monsivais / AP
Just moments after Republicans scuttled their health care bill Friday, President Trump said Obamacare was "imploding and soon will explode," and added that he never promised to quickly repeal it.
Trump discussed the failure of the Obamacare replacement — which was one of his signature issues on the campaign trail — during a news conference in the Oval Office. House Speaker Paul Ryan pulled the health care bill Friday after failing to secure enough votes before a roll call.
"We couldn't quite get there," Trump told reporters. "We were a small number of votes short. There are many people who don't realize how good our bill was."
Though the failure was a major setback for Trump's early presidency, he said Friday's turn of events was "perhaps the best thing that could happen" because "we'll end up with a truly great healthcare bill in the future after this mess known as Obamacare explodes."
Trump repeatedly described Obamacare as teetering on the edge of destruction, saying later that "it's imploding and soon will explode."
"And it's not going to be pretty," he added.
Trump also speculated that at some point, "Democrats will come to us and say let's get together and get a great health care bill," adding that he did not feel betrayed by Republicans who refused to vote for the health care bill.
The president also pushed back against criticism regarding his time table.
"I never said repeal and replace it within 64 days," he said. "I have a long time."
However, Trump repeatedly talked about repealing and replacing Obamacare while campaigning last year. And in a tweet in February 2016, he promised to "immediately repeal and replace" the Affordable Care Act.
But on Friday, Trump said he would "let Obamacare go its way for a little while. Then we'll see how things go."
Pool / Getty Images
WASHINGTON — More than a week after President Trump's second travel and refugee ban was stopped by a pair of federal courts, the Justice Department on Friday afternoon filed arguments in support of the executive order in both cases.
"The Order is a valid exercise of the President’s broad statutory authority to 'suspend' 'the entry of any aliens or of any class of aliens' and to prescribe 'reasonable rules, regulations, and orders,' as well as 'limitations and exceptions,' regarding entry," Justice Department lawyers argued to a federal appeals court.
The Justice Department currently faces two court orders halting enforcement of the executive order.
In a case brought by the state of Hawaii, a federal judge halted enforcement of sections 2 and 6 of the order — the provisions setting up a 90-day travel ban from six majority-Muslim countries and a 120-day shutdown of the refugee program, respectively. The other order, in a case brought by individuals and refugee organizations in Maryland, stops the Trump administration from being able to enforce the 90-day travel ban specifically.
In the Hawaii case, which is still before the district court, the Justice Department on Friday opposed the state's request that the court convert its temporary restraining order into a preliminary injunction.
In the other case, the Justice Department appealed the injunction of the travel ban provision to the US Court of Appeals for the Fourth Circuit.
On Friday, Justice Department lawyers asked the appeals court to stay the district court's injunction pending its appeal. In addition, the department filed its merits brief, the substantive argument defending the 90-day travel ban provision.
The filings came later in a day in which Trump received his first court victory in a challenge to the new executive. A federal court in Virginia denied a request for an injunction in a lawsuit backed by the Council on American–Islamic Relations.
This is a developing story. Please check back at BuzzFeed News for the latest.
WASHINGTON — At the Latino Coalition's "Make Small Business Great Again" event this month, Linda McMahon, who leads the Small Business Administration, told the Hispanic audience she's leaning on the advice of group’s chairman, Hector Barreto.
Vice President Mike Pence followed, opening his afternoon speech with a clunky, but well-received "buenos tardes a todos!" He said that Latino small businesses are the fastest-growing in the nation. "Can we give a round of applause to all the Latina small business owners in the room?" He flashed a wide smile.
A week later it was Trump's daughter, Ivanka Trump, who held a private listening session with a dozen Latina entrepreneurs.
The same day, chief of staff Reince Priebus held a meeting with a larger group from the U.S. Hispanic Chamber of Commerce. With the campaign over, former foes like USHCC president Javier Palomarez were welcome to engage the administration. Palomarez, who endorsed Hillary Clinton for president during the campaign, heaped praise on Priebus — the USHCC was lucky to have him!
"You don't have to all of a sudden love the president but I think you’re going to love his policies," Steve Cortes, a Fox News contributor, said at the meeting.
In the Trump administration, where tweets are a form of currency, the USHCC was treated well. Ivanka Trump tweeted about her meeting with Latinas, Trump retweeted the group, and the president dictated his own tweet to spokeswoman Hope Hicks.
"My representatives had a great meeting w/ the Hispanic Chamber of Commerce at the WH today. Look forward to tremendous growth & future mtgs!" he tweeted.
Away from the Washington policy summits and black tie dinners, though, some Latino-owned small business owners describe a climate of fear affecting employees and business itself. In Latino and immigrant communities there is rising concern, even among those close to the Trump administration, about an immigration crackdown. People are foregoing trips to many places outside of work and their homes, which is having a deleterious effect on Hispanic businesses in majority Latino cities.
In some immigrant communities, industries as varied as restaurants to tax preparation say any number of issues — from immigration enforcement to trade renegotiation — have created enormous uncertainty. Many stories are anecdotal, but the variation in industry reflects how that uncertainty about how Trump will govern has chilled some Latino areas; even if the administration doesn’t make severe changes to the way immigration or trade is enforced, a lot of people think they will.
In areas with large Latino populations, for instance, taxes can be tricky. Many immigrants, including those who are undocumented, file their taxes using an ITIN form rather than a social security number, which some obviously do not have. A manager at Toro Taxes in Las Vegas, whose customers are 85% Latino, said the effect of Trump's win was disastrous and swift. With less than a month to go before the April 15 deadline, his business is down 40% from last year.
"They work and they usually come and do their taxes but they're scared because of rumors that people are going to get them with the police acting like immigration," the manager said, asking his name to be withheld. "This president instead of building the country he’s going to kill the country."
A consultant noted that Univision was recently interested in setting up an informational town hall in Las Vegas to calm fears in the community. "They’re hurting and losing a shit ton of money because Latinos are in panic mode," the source said.
Univision itself, in many ways a barometer of the state of the Hispanic community in the U.S., embraced anti-Trump activism during the campaign, to their detriment. After Trump’s win, they’re now feeling the effects of timid advertisers worried that Latinos are not spending, according to two network sources. Revenue for the Univision Television Group that spans more than 120 local television and radio stations across the country is expected to be down roughly $15 million in the first quarter and $50 million in the second quarter, though company sources expect a rebound in the third and fourth quarters.
Mercy Mosquera, the owner of Tierra Colombiana restaurant in Pennsylvania was a 2015 winner of the Philadelphia Minority Business Leader award. She said while the area she works in is 90% Hispanic, her customers breakdown half-Latino, and half other groups. Still, she has heard the whispers — the uncertainty and feeling that they should save money just in case.
"You do realize a customer that used to come three or four times in a week, maybe now they come once, which affects us," she said.
Jaime Chamberlain, the president of a company based in Nogales, Arizona called J-C Distributing Inc., which distributes Mexican produce in the U.S., said it was too early to judge Trump. But Chamberlain noted that Trump’s rhetoric on disintegrating the NAFTA trade deal between the U.S. and Mexico, though, or changes to the way the United States taxes exports is alarming and could hurt his business.
"It's always a concern," he said, before sounding a note that everything should be fine. "We have a wide group of customers that need Mexican food."
The new DNC chair Tom Perez told BuzzFeed News that Trump’s “hateful” rhetoric and policies toward immigrant families have stoked fear in communities, “including schools and small businesses.”
“The Latino community in Philadelphia even had to cancel their Cinco de Mayo celebration due to fear of deportations,” Perez said.
The Trump administration wants to be seen as tough and unforgiving when it comes to people in the country illegally but does not want to harm Hispanic businesses. An administration insider said what they've heard is also anecdotal — people who only want to go to work and come home and fear even going to the corner store, but see it as a problem.
"I think it’s unfortunate, it bothers me and I think it’s real," the source said.
Courtesy Steve Cortes
In Washington, the conversation is notably wonky. Hispanic businesspeople zeroed in on regulations and access to capital as starting points. Jennifer Korn, the administration's deputy director of the public liaison office, whose job it is to connect with key communities, told BuzzFeed News that Hispanic business groups appreciated that out of the gate Trump signed an executive order which removes two regulations every time one goes into effect.
Allen Gutierrez, executive director of the Latino Coalition, said that his group was specifically energized that the administration moved to stop Obama's overtime rule that would make more workers eligible for overtime pay but conservatives argue would hamstring employer flexibility and that Trump seeks to scrap the fiduciary rule that protects investors from the decisions of their financial advisors but is also viewed by some as an onerous regulation.
Korn said the administration is working to have communities know the positive message it espouses and said some of the blame for fear in communities lies at the feet of media who amplify it.
"That’s why going to their conferences is important and inviting them to the White House," she said, of Hispanic groups. "The only way to get through misperceptions, what the media is saying, is sharing what’s important to us and what’s important to you. During almost every single listening session people say 'we feel like we have a voice in this administration.'"
Besides the president, Korn pointed to Priebus who sat in the USHCC meeting and spearheaded the RNC's 2012 growth and opportunity project that Trump largely cast aside, as someone who recognizes the importance of the Hispanic community and a reason why the efforts will continue past the opening months.
"Reince even before coming to the administration has cared about engaging in all communities," Korn said. "What’s great is he is continuing that commitment."
But supporters say the commitment to Hispanic businesses starts at the top with Trump. Cortes, the Fox News surrogate, finally got to meet the president during his visit to the White House and left all smiles with an inception-esque photo of Pence taking a photo of him and Trump with his trademark thumbs up. Cortes said he told Trump that he got 30% of the Hispanic vote when the media narrative was that he "hated" Hispanics.
"My goal for you in 2020 is to get 50%," Cortes said. "Well, we’ll never lose an election again," Trump responded.
Outside the Latino Coalition event after Pence spoke, Irma Aguirre, who served on Trump's small business advisory council, tried to explain the optimism she feels in the Trump presidency. She saw her business take a major hit from protesters for inviting him to her restaurant El Sombrero Mexican Bistro in Las Vegas during the campaign.
She lauded his personal touch, recalling that during the campaign Trump asked her and other business owners how he could help them. They told him that small business loans would help with access to capital and she believes regulations that have already been slashed on lenders will make it easier for small businesses.
Aguirre acknowledged that there is fear in Latino communities — also blaming the media for "fearmongering" — but she said business owners she speaks with are excited about President Trump.
"When he got elected many of us felt that wow I think this is going to be a real type of a change because he's a businessman and he gets us," she said.
But just three miles away, the manager at Toro Taxes said the message from immigrants and past customers scared to file taxes is already hurting his bottom line, which should concern the administration.
"We’ll wait and see what’s going to happen with this president," they tell him. "If they don’t deport us we’ll do our taxes next year."
There’s an old Sprite commercial, from the 1990s, in which it's a hot summer day on a city basketball court. Someone cracks open a Sprite, then jumps and cannonballs into the blacktop. It’s OK, though, because the asphalt has become a swimming pool.
This ad does not relate to President Trump or this year in any direct way, but it does in this conceptual one: that these days, looking into a phone screen — a hard, flat surface — is like dropping through a portal into an anxiety spiral.
Everything might seem so normal, then you unlock your phone and — bam — everything gets LOUD again. You have almost certainly had this experience: You wake up in the morning or from a nap or walk out of a movie, then check Facebook, Twitter, your texts to find people mid-thought, context-free, frozen in emotion, angry at Trump or the Trump people or the anti-Trump people or the media, angry and mocking at hypocrisy whose details aren’t yet clear to you, angry at how ineffectual someone is, or maybe they’re doing something even more indecipherable — it’s not anger, it’s just a meme or a quotation or a screenshot with "lol" or “2017” or just an emoji.
The mystery begins: What happened? What has Trump done now?
There you find yourself, physically in the car or outside the gym, but nevertheless creeping at the edge.
There you find yourself, physically in the car or outside the gym, but nevertheless creeping at the edge, taut, listening just long enough to pick up contours of the argument, trying to put together the news from these fragments.
The longer you listen, though, the more likely you are to be pulled under because this is a distraction, it’s a distraction from last night and it’s working, I'm losing track of whatever this is supposed to be distracting us from, not everything is 3-D chess, I’m getting tired of this 3-D chess stuff, this is classic Trump, this is classic Bannon, I’m not saying this is like the 1930s buuuuut, tfw democracy ends, that we're even talking about this is insane, this is lit, this is FALSE, he lies, he’s a liar, why don’t they say he’s a liar, if the media spent a little less time hysterical like this and more on actual news, fake news, FAKE NEWS, notice what day it is when this happens, this is the third time that Jared and Ivanka were away, actually if you look at when this happened in 1993, a few thoughts on how this affects Trump’s base 1/x, oh now they care about this, now you pretend like you care, I don’t remember them caring about this when Obama did it, I can remember when Trump cared about this, if these people cared about this in June or October or ever in their lives then maybe I’d take them seriously — and on and on and on.
There’s a Twitter account that tweets just one thing, all day.
While this is funny, if you step back and imagine that the people who retweet this even slightly feel that “AHHHHHH” reflects what they actually think, you can then imagine Twitter as a village of intermittent, solitary screams.
And why are we living this emotionally fraught, all-consuming, fluid yet didactic, meta argument over how to act or think about each day?
“Usually around 6:30 p.m., or sometimes later,” the New York Times reported earlier this year, “Mr. Trump retires upstairs to the residence to recharge, vent, and intermittently use Twitter… he is almost always by himself.”
In the morning or late at night, like Moses down from the mount to repeatedly slam a car door into your forehead, here’s Trump: accusing Obama of wiretapping him, indirectly accusing Obama of using the Brits to spy on him, quoting Andrew Napolitano (“All we did was quote a very talented legal mind”), joking that he and Angela Merkel share Obama spying on them, retweeting Bill Mitchell (“EXACTLY AS I SAID - House Intel Chair: We Cannot Rule Out Sr. Obama Officials Were Involved in Trump Surveillance“), explaining how it's actually fine what he did (“Now remember this, when I said wiretapping, it was in quotes. Because a wiretapping is, you know today it is different than wiretapping.”). Then, of course, there's little part that blossomed from the original tweet (“Terrible!”), every dismissal (GCHQ, FBI, DOJ, the Intelligence chairs), every theory and story about how this idea got into Trump’s head, every blind quote about whether someone has apologized (“no way, no how”) or just who should apologize to whom ("That's up to him"), every lecture about how FISA courts work, every lecture about under what conditions the CIA can make your television spy on you, every sick own, every gif of grim ol’ Angela Merkel. Hey look, in the meantime, he can’t be doing so badly, because he’s president, and you’re not, you know. Say hello to everybody, OK?
Quench your thirst with a refreshing Sprite.
That’s just one thing that’s happened this month. There are a hundred more, of various sizes and shapes.
This is what it’s like to experience true dissonance. There’s so much discordant noise that just making out each individual thing and tracking its journey through the news cycle requires enormous effort. It's tough to get your bearings. Trump’s presidency currently poses a fundamental question for each person: Is this overall moment weird but ephemeral, maybe not so bad — or is it an emergency? Given the current level of uncertainty (does Trump really mean X?) and the sheer volume of incoming information (what will Trump do tomorrow?), each day demands your judgment. Is this normal? Is this normal? Is this normal?
These questions are exhausting. And sometimes they drift in a slightly more meta direction. There’s, for instance, a tide of previous apolitical, or softly political, people now sorting out where politics is OK (South Beach Wine and Food Festival) and where it is not (a Facebook group for Outlander fans). Parts of the left have become obsessed with enforcing the purest standard of resistance to Trump for their own party — how total can opposition be? That must be the standard. Parts of the conservative movement have devolved into an “anti-anti-Trump right” — consumed with attacking the left or clowning the media, and backing themselves into indirectly defending the president. As Jonathan V. Last recently wrote, “Trump is the thing. And focusing on the excesses of the anti-Trump forces means focusing on a meta-issue rather than the primary issue.”
This is what it’s like to experience true dissonance.
Who can blame us, though?
We’re more than a year into doing politics all the time at general election saturation (that's not normal), nervously waiting for a resolution that isn’t coming. Trying to find your way under the crush — to determine the truth amid the complexities of protocols, regulations, legislation, ideology, anonymous sources, conflicting reports, denials, public statements, his tweets — it’s too much. We can't live like that!
Besides, this is the era of the cable news revival and the weighted social media algorithm. People's reactions — their theories about what's really going on here — end up occupying as much space as the actual action. And nothing's more infuriating than the wrong reaction.