Former Obama DOJ Civil Rights Officials Blast Sessions On Local Policing! — Seattle Finds Sessions Dead Wrong, Fed’s Intervention & Consent Decrees Make Dramatic Improvements, Save Citizens & Police From Unnecessary Violence!

Op-Ed in the NY Times:

APRIL 5, 2017
“Attorney General Jeff Sessions recently ordered a review of federal agreements with a number of local law enforcement agencies aimed at reforming troubled departments. As a first step, the Justice Department on Monday asked a judge to delay a consent decree that would overhaul Baltimore’s police force.

On its face, Mr. Sessions’s order simply asks whether the consent decrees promote public safety, support officers, respect local control and are warranted. But underlying the order is the Trump administration’s belief that efforts to align police practices with the Constitution have compromised public safety and thrown police officers under the bus.

This couldn’t be farther from the truth.

Countless police chiefs and mayors are vocal about wanting federal reform or have emerged from the consent decree process remarking that their departments were the better for it. Mr. Sessions claims to want to revert to local control, but he should listen to local officials like Baltimore’s police commissioner, Kevin Davis, who called the Justice Department’s request to delay the reform agreement “a punch in the gut” and noted that “a consent decree will make the Baltimore police department better both with the crime fight and our community relationships.”

No matter what review Mr. Sessions conducts, he cannot unilaterally undo these reform agreements. That’s because the district courts that oversee them will ultimately decide their fate. In addition, the reforms are negotiated with local elected officials and law enforcement leaders, with extensive input from grass-roots organizations, police unions, officers and civilians. Mr. Sessions can try to undermine them, but many of the reforms are durable.

That’s good, because communities around the country need this work to continue. In cities like Ferguson, Mo., Chicago and Baltimore, federal reform addresses unconstitutional stops, searches and arrests, and excessive and retaliatory force. These problems erode trust between police departments and the communities they serve, trust that is essential to effective policing as well as officer and public safety.
Rebuilding these ties is also necessary for preventing and solving crime. Few in law enforcement would disagree with this. When we worked on police reform at the Justice Department, we heard over and over again from officers and community members during our investigations in Baltimore and Chicago that relationships had broken down so badly, witnesses sometimes refused to share vital information and victims declined police assistance.

Mr. Sessions’s suggestion that the Justice Department’s policing agreements interfere with proactive policing is likewise baseless. There is no question that lawful stops, arrests and, at times, the use of force are all necessary tools for ensuring public safety. But Baltimore’s misguided zero-tolerance policing strategy, for example, severely damaged police-community relations, especially in black neighborhoods. Even the Baltimore Fraternal Order of Police acknowledged that officers felt “pressure to achieve numbers for perception’s sake.”


And, Seattle’s recent experience shows that Federal intervention and consent decrees improve policing and saves lives, as shown by this report in the Seattle Times:

“Five years after the U.S. Justice Department found Seattle police officers too often resorted to excessive force, the federal monitor overseeing court-ordered reforms issued a glowing report Thursday concluding the department has carried out a dramatic turnaround.

Crediting Mayor Ed Murray, Police Chief Kathleen O’Toole and, most of all, the Seattle Police Department’s men and women, the monitor, Merrick Bobb, found overall use of force is down and, when officers do use it, it is largely handled in a reasonable way consistent with department policies.
As a result, Bobb found the department to be in substantial compliance — formally known as initial compliance — with core provisions of a 2012 consent decree that required the city to adopt new policies and training to address excessive force.
“The significance and importance of this finding cannot be understated, as this report makes clear,” Bobb wrote in the 102-page assessment. “It represents a singular and foundational milestone on SPD’s road to full and effective compliance — and represents Seattle crystallizing into a model of policing for the 21st century.”

Moreover, use of force has dropped even as officer injuries have not gone up and crime, by most measures, has not increased, Bobb and his monitoring team write in the report.

O’Toole shared the results in a departmentwide email Monday afternoon, saying, “In short, the Monitor’s assessment confirms the data that SPD reported on earlier this year: of the hundreds of thousands of unique incidents to which SPD officers respond every year, only a small fraction of one percent result in any use of force.”

The report, which has been in the works for some time, comes days after U.S. Attorney General Jeff Sessions ordered Justice Department officials to conduct a review of reform agreements with more than a dozen police agencies nationwide to determine whether they, among other things, undermine officer safety and crime fighting.

While the order could undercut newer agreements reached under the civil-rights emphasis during the Obama administration, officials have said it is unlikely to affect Seattle’s pact because it is under the firm control of a federal judge.

The judge, James Robart, has shown an unwavering commitment to Seattle’s consent decree, even declaring “black lives matter” during a court hearing, and earlier this year halted the Trump administration’s first travel ban.
In a statement Tuesday, Murray said, “Our progress under the Consent Decree cannot be undone by empty bureaucratic threats. Our police department is well into the process of reform and will continue this work. We are too far along for President Trump to pull us away from justice.”

Read the complete article here:’s_use_of_f&utm_medium=email&utm_term=0_5beb38b61e-fe0fd2fdf6-122767877



Must be hard for current and former DOJ Civil Rights Division attorneys, who have spent years painstakingly investigating, drafting, and negotiating agreements to promote effective, constitutional policing to see their work being trashed by a guy who has spent most of his career trying to limit civil and human rights. Been there myself, in a somewhat different context, and it’s very disheartening and maddening.

While I don’t have much optimism that career attorneys in the DOJ will be able to stand up to Sessions and keep their jobs, it is encouraging that many of the jurisdictions, police departments, and Federal Judges involved in the consent decree process intend to keep the ball rolling despite Session’s attempts to undermine their efforts.

And, certainly advocates, like Gupta and Stoughton in their new “private sector” positions, intend to keep the pressure on even if it means doing battle with the Trumped-up Sessions version of the DOJ. Forget civil rights, gotta keep a close eye on what those H-1B workers and their employers are up to.





DOJ’s Travel Ban Litigating Strategy Discussed — The Rush Appears To Be “Off!”

Matt Zapotosky reports in the Washington Post:

“Legal analysts and opponents say the Justice Department is likely pursuing a more methodical, strategic approach in hopes of a long-term victory — although in the process, the administration is hurting its case that the order is needed for urgent national security.

“If they don’t try to move the case as quickly as possible,” said Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, “it does undermine the security rationale.”

Trump’s new travel order — which suspended the U.S. refugee program for 120 days and blocked the issuance of new visas to citizens of Iran, Sudan, Somalia, Libya, Somalia and Syria for 90 days — was supposed to take effect March 16, but U.S. District Judge Derrick K. Watson in Hawaii blocked the administration from enforcing the critical sections of it. Early the next day, a federal judge in Maryland issued a similar ruling — leaving the administration with two different cases, in two different appellate circuits, that they would need to get overturned before they could begin carrying out the president’s directive. All roads seemed to lead to the Supreme Court.
But now it seems all but certain that the president’s revised entry ban will stay suspended at least into April, and possibly longer.

Lawyers for the Justice Department filed a notice of appeal in the Maryland case a day after the judge there ruled, but — unlike last time — they did not ask the higher court to immediately set aside the freeze on the new ban. They said they will do so Friday, but those challenging the ban will have a week to respond, and the Justice Department will then be allowed to file more written arguments by April 5.

The Trump administration has been content to let the court battle play out even more slowly in Hawaii, not elevating the dispute beyond a lower-court judge. The Justice Department has not filed a notice of its intent to appeal the ruling, and the next hearing in that case is set for March 29. Justice Department lawyers wrote Thursday that they would appeal to a higher court if that hearing doesn’t resolve in their favor. The courts will ultimately have to decide important questions, including how much authority they have to weigh in on the president’s national security determinations, whether Trump’s order was meant to discriminate against Muslims, and whether and how the president’s and his advisers’ own comments can be used against them.

There could be strategic reasons for pumping the brakes. Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School, said the Justice Department might be hoping for a favorable ruling from the U.S. Court of Appeals for the 4th Circuit, of which Maryland is a part, before they bring a case before the 9th Circuit, of which Hawaii is a part. A three-judge panel in the 9th Circuit unanimously rejected the administration’s bid to restore Trump’s first entry ban after it was frozen. The 4th Circuit on Thursday scheduled oral argument in its case for May 8.

And the Justice Department could be playing an even longer game, hoping that by the time the case makes its way to the Supreme Court, Neil Gorsuch will have joined the justices and brought to an end what many see as a 4-to-4 split along ideological lines, said Jonathan E. Meyer, a former deputy general counsel in the Department of Homeland Security under Obama who now works in private practice at Sheppard Mullin.”


Even assuming that the Supremes eventually take the case, by no means a “gimme,” it probably would not be heard by the Court until some time in 2018 with a decision perhaps months after the argument. During that time, it is highly likely that the Travel Ban will remain enjoined.

From a government standpoint, it’s always prudent to 1) think carefully before taking on issues that can be litigated in U.S. District Courts which have authority to issue nationwide injunctions which require only a preliminary showing and are very difficult to “undo” (by contrast, “Removal Cases” usually can only be litigated in Circuit Courts of Appeal, which, although higher on the “judicial totem pole” than USDCs, lack authority to issue nationwide injunctions in connection with such individual case judicial review); and 2) always have “Plan B.” Here, “Plan B” might be the more stringent requirements for screening and issuing visas from countries where terrorist activity has taken place set forth in Secretary of State Tillerson’s recent instructions discussed in my previous blog:





TRAVEL BAN UPDATE: “SOPS” Continue To Flow From 9th Cir. Judges in Washington v. Trump — WSJ & WASHPOST Hang “Stupid But Constitutional” Tag On Trump — CNN’s Danny Cevallos Agrees With Rappaport That Trump Has Good Chance Of Ultimate Legal Win!

What’s a “SOP?”  That was BIA lingo for “separate opinion,” a fairly frequent occurrence on the “Schmidt Board.”

There are now five separate opinions commenting on the refusal of the en banc 9th Circuit to vacate the panel’s decision in State of Washington v. Trump following the Government’s decision to withdraw it’s appeal form the TRO on “Travel Ban 1.0:”

“This order is being filed along with a concurrence from Judge Reinhardt, a concurrence from Judge Berzon, a dissent from Judge Kozinski, a dissent from Judge Bybee, and a dissent from Judge Bea. No further opinions will be filed.

Josh Gerstein explains in Politico:

“President Donald Trump’s travel ban has triggered an unusually caustic public spat among the judges of the federal appeals court that first took up the issue.

The disagreement began to play out publicly Wednesday when five 9th Circuit Court of Appeals judges publicly recorded their disagreement with a decision three of their colleagues issued last month refusing to allow Trump to reinstate the first version of his travel ban executive order.
The fight escalated dramatically on Friday with the five Republican-appointed judges filing another withering attack on the earlier opinion and two liberal judges accusing their conservative colleagues of trying to make an end-run around the traditional judicial process.

In the new opinion, Judge Alex Kozinski blasted the earlier ruling for essentially ignoring the fact that most of those affected by Trump’s initial travel ban have no constitutional rights.

“This St. Bernard is being wagged by a flea on its tail,” Kozinski wrote, joined by Judges Carlos Bea, Jay Bybee, Sandra Ikuta and Consuelo Callahan.

Kozinski’s opinion harshly criticized the earlier 9th Circuit decision for blessing the idea that courts could take account of Trump’s campaign-trail statements vowing to implement a Muslim ban.

“My colleagues err by failing to vacate this hasty opinion. The panel’s unnecessary statements on this subject will shape litigation near and far. We’ll quest aimlessly for true intentions across a sea of insults and hyperbole. It will be (as it were) a huge, total disaster,” Kozinski said, in an an apparent tip of the hat to Trump’s bombast.

That didn’t sit well with Judge Stephen Reinhardt, who accused his colleagues of trying to affect the ongoing litigation over Trump’s redrafted executive order.

“Judge Kozinski’s diatribe, filed today, confirms that a small group of judges, having failed in their effort to undo this court’s decision with respect to President Trump’s first Executive Order, now seek on their own, under the guise of a dissent from the denial of en banc rehearing of an order of voluntary dismissal, to decide the constitutionality of a second Executive Order that is not before this court,” wrote Reinhardt, an appointee of President Jimmy Carter. “That is hardly the way the judiciary functions. Peculiar indeed!”

Another liberal 9th Circuit judge, Marsha Berzon, weighed in Friday with a more restrained rejection of her colleagues’ efforts to undermine the earlier ruling.

“Judges are empowered to decide issues properly before them, not to express their personal views on legal questions no one has asked them. There is no appeal currently before us, and so no stay motion pending that appeal currently before us either,” wrote Berzon, an appointee of President Bill Clinton. “All the merits commentary in the dissents filed by a small minority of the judges of this court is entirely out of place.”
“My dissenting colleagues should not be engaging in a one-sided attack on a decision by a duly constituted panel of this court,” Berzon added. “We will have this discussion, or one like it. But not now.”

Kozinski responded by accusing his liberal colleagues of trying to silence the court’s public debate on the issue.”

“My colleagues’ effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinion’s legal analysis,” wrote Kozinski, an appointee of President Ronald Reagan.”

Here’s the link to Gerstein’s article:

And, here is the link to the court’s order containing all of the opinions, so you can judge for yourself:

Meanwhile, the WSJ Editorial Board channeled a little of the late Justice Antonin Scalia:

“The late Supreme Court Justice Antonin Scalia once wished aloud that all federal judges be issued a stamp that said “Stupid but Constitutional.” Such a stamp would have been useful this week to the two federal judges who bounced President Trump’s revised travel ban that suspends immigration from six Muslim-majority countries that the Administration says pose particular terror risks.

Our view is that the ban is lousy policy, and any urgency that Mr. Trump’s first-week executive order once had is gone. But after the Ninth Circuit Court of Appeals blocked the original version, the White House went back to the drafting board and tailored the new order to address the court’s objections. The President has vast discretion over immigration, and the do-over is grounded both in statute and core presidential powers, which is when the Supreme Court’s Youngstown decision teaches that a President’s authority to act is strongest.”

Read the complete editorial here:

On today’s editorial page, the Washington Post made much the same point, if only a little less emphatically with respect to the Administration’s legal position:

“THE SPEED and enthusiasm with which two federal courts halted President Trump’s latest travel executive order might suggest that the revised policy is as obviously problematic as the last, which was a sloppy rush job that the government poorly defended in court. In fact, the revised policy, while still more likely to harm than help national security, is legally far more defensible. Decades of precedent instruct judges to defer to the executive branch on immigration and national security matters such as this. It should surprise no one if the Supreme Court eventually allows the Trump administration to proceed.”

Read the complete Post editorial here:

Finally, CNN Legal Analyst Danny Cevallos makes many of the same points that Nolan Rappaport has made in his articles in The Hill in predicting that the Administration legally has a winner if they are ever able to get this issue to the Supremes:

“The president is in charge of immigration. Immigration policy, by its very definition, is a form of discrimination. The only truly nondiscriminatory immigration policy would be: Everyone come in, whenever you want. Anything short of that is discrimination in some form, and it’s generally within the president’s province. This is not some village rezoning policy. This is national immigration policy, and it’s different than any of the other Establishment Clause cases.
If courts can look into this particular President’s prior statements when considering the constitutionality of his actions, then every single executive action is potentially vulnerable. A gender-neutral executive order could be challenged as discriminatory against women. After all, this is the candidate who believes women can just be grabbed by the …, well, you know. A presidential action that is disability-neutral could be challenged on the basis that the candidate mocked a disabled reporter.
While the court in Hawaii cited established Supreme Court precedent in finding a probable Establishment Clause violation, the appellate courts could still find that Trump’s executive authority prevails. Yes, the district court cited some controlling authority, but an appellate court could distinguish those cases from the unique case before it — one that pits constitutional executive power head-to-head with the First Amendment.”

Read the full Cevallos analysis here:

Then, read Nolan’s previous articles from The Hill or as reposted on this blog.


Overall, I think it is a good thing when there is some spirited dissent and disagreement among members of a collegial court like the 9th Circuit.  It shows that the Judges are engaged and that they care about the issues, as they should. Also, dissent is often directed at other courts (like the Supreme Court), at Congress, the Executive, or at educating the media and the public at large about important legal issues. Without dissent and the resulting dialogue it often provokes, you would have “a room full of people patting each other on the back.” And, what’s the purpose of a “deliberative” collegial court that doesn’t “deliberate?”




HuffPost Politics: Trump’s Attacks on Federal Judges Continue to Draw Fire!

“HONOLULU (Reuters) – One of three federal appeals court judges who last month upheld a ruling that blocked U.S. President Donald Trump’s first try at a travel ban said on Thursday it was “corrosive to the justice system” when litigants attack judges for their decisions.

Judge Richard Clifton of the 9th U.S. Circuit Court of Appeals became the latest in a series of judges to draw criticism from Trump after Clifton and two colleagues refused to reinstate an executive order temporarily barring entry by people from seven Muslim-majority countries.

Shortly after the Feb. 9 ruling, Trump tweeted: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He also told reporters that the ruling was “political.”

“It’s easy to blame the referee when you don’t like the result,” Clifton said in a speech to the Conference of Western Attorneys General, which is meeting in Honolulu.

“It is corrosive to the system when a disappointing result, or result disappointing to you, is responded to by blaming the referee,” said Clifton, who did not mention Trump by name.

. . . .

In an order issued late Wednesday related to Trump’s first travel ban challenge, a colleague of Clifton, U.S. Circuit Judge Jay Bybee, had words of his own for the invectives against members of the judiciary in these cases.

“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,” Bybee wrote, declining to mention the president by name.

The judge, who was also appointed by Bush, added: “It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court.”


As pointed out in my blog yesterday, Judge Bybee was actually filing a dissenting opinion supporting the President’s authority to issue “Travel Ban 1.0.” Even so, he was offended by the President’s attacks on his Federal Judicial colleagues. Never good when even those who agree with your legal position are put off by your obnoxious personal conduct.  Judge Bybee also reinforced one of my points — judges at any level never appreciate comments on the merits of a case by a party.

Here’s the link to my post from yesterday:




WashPost: Trump & Advisers Are Own Worst Enemies — Intemperate Statements And Overt Bias Undermine Litigation — Clients Should Not Comment On Pending Cases Is One Of The Oldest Rules Of The Game — Trump & Co. Should Follow It If They Want To Be “Winners”–and-its-becoming-a-real-problem/2017/03/16/157d2100-0a63-11e7-93dc-00f9bdd74ed1_story.html?hpid=hp_rhp-top-table-main_trumpwords-815pm:homepage/story&utm_term=.9888c4c5deac

“But perhaps nowhere have Trump’s words been as damaging as his attempts to implement the travel ban — which may have been damaged further by Trump’s remarks at his Nashville rally. Trump inflamed controversy during the campaign by calling for a temporary ban on all foreign Muslims from entering the United States, then later shifted to vague pledges to ban people from countries with a history of Islamist terrorism.

“I am sure that challengers will use the president’s comments last night as further evidence that the true intent of his executive order is to bar Muslim immigration,” said Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School.”


Trying to defend this gang and some of their ill-conceived policies and unnecessarily inflammatory statements is going to be a challenge, even for the most savvy Government attorney.



Problems Mount For Administration On Travel Ban — Can’t Find Support For Their “Pre-Hatched” Conclusions — Stephen Miller Shoots Off Mouth Again — DOJ Litigators Undoubtedly Cringe As In-Court Statements Undermined!

Matt Zapotsky writes in the Washington Post:

“Senior policy adviser Stephen Miller said President Trump’s revised travel ban will have “mostly minor technical differences” from the iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”

That is not what the Justice Department has promised. And legal analysts say it might not go far enough to allay the judiciary’s concerns.

A senior White House official said Wednesday that Trump will issue a revised executive order on immigration next week, as the administration is working to make sure the implementation goes smoothly. Trump had said previously that the order would come this week. Neither the president nor his top advisers have detailed exactly what the new order will entail. Miller’s comments on Fox News, while vague, seem to suggest the changes might not be substantive. And that could hurt the administration’s bid to lift the court-imposed suspension on the ban, analysts said.

“If you’re trying to moot out litigation, which is to say, ‘Look, this litigation is no longer necessary,’ it is very bad to say our intent here is to engage in the prohibited outcome,” said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama’s Justice Department.”

Jennifer Rubin writes in Right Turn in today’s Washington Post:

“Opponents of President Trump’s travel ban have one big advantage — the Trump White House. If not for the confusion, lack of staffing (nary a deputy, let alone an undersecretary or assistant secretary, has been named in national security-related departments), organizational disarray, policy differences or all of the above, the administration might have put together on its first try a legally enforceable executive order. It might by now even have come up with a new executive order, thanks to a road map provided by the 9th Circuit. However, the rollout has been pushed back to next week.

Understand that if this is such a matter of urgent concern, the president would have had his advisers working around the clock on this (not transgender bathroom assignments, plans to deport non-criminal illegal immigrants or haggling with Mexican officials over a wall that Trump insists they pay for). In fact, since the point of the ban is to initiate a review of our vetting procedures, you’d think that the Homeland Security Department would already have come up with its proposed “extreme vetting” recommendations.

Meanwhile, the president and his staff continue to provide legal ammunition to opponents of the ban. On Tuesday, senior adviser Stephen Miller in a Fox News interview boldly declared, “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court.” Just to remind the courts of the administration’s arrogance, Miller proclaimed that there was nothing wrong with the first order.

“By saying that the policy effects of the new travel ban will be essentially the same as those of the travel ban that so many federal judges found constitutionally suspect, Miller is effectively inviting federal courts to suspend the new one as well, given that the religiously discriminatory history of the ban can’t be ignored, much less erased, simply by purporting to start over again,” Supreme Court litigator and professor Larry Tribe tells me. “If, as I am told, the new ban is a more artfully disguised version of [an] anti-Muslim measure, without explicit preferences for religious minorities in Muslim-majority countries (i.e., for Christians) written into the very text of the ban, then some judges might be less inclined to issue a temporary restraining order, but most federal judges would be savvy enough to recognize that they are being treated to a masquerade.”

Meanwhile, Jake Tapper and Pamela Brown on CNN highlight more difficulties with the Administration’s “shoot first, ask questions later” approach:

“Washington (CNN)President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.
“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” the senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

The report was requested in light of the Ninth Circuit Court of Appeals’ conclusion that the Trump administration “has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.” The seven counties are Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.
The senior White House official said the desire to bolster the legal and public case that these seven countries pose a threat is a work in progress and as of now, it’s not clear if DHS and DOJ will offer separate reports or a joint report.
One of the ways the White House hopes to make its case is by using a more expansive definition of terrorist activity than has been used by other government agencies in the past. The senior White House official said he expects the report about the threat from individuals the seven countries to include not just those terrorist attacks that have been carried out causing loss of innocent American life, but also those that have resulted in injuries, as well as investigations into and convictions for the crimes of a host of terrorism-related actions, including attempting to join or provide support for a terrorist organization.
The White House did not offer an on-the-record comment for this story despite numerous requests.

. . . .

Asked about the report Thursday on “The Lead,” Rep. Dan Donovan, R-New York, emphasized that the intelligence community be nonpartisan.
“They should take data, take information, shouldn’t interpret it in a political way and provide the President the information he needs to make decisions to protect our country,” he said.
Also commenting on the report was Richard Haass, the president of the Council on Foreign Relations, who acknowledged that he hadn’t seen the specifics but “it looks wrong to me.”
“We ought to be doing the intel first, then set the policy and in large part based upon the intelligence,” Haass said. “If these reports are true, it’s yet another example where this administration is having real trouble ing a functional relationship with the intelligence community.”

[Emphasis supplied in all quotes]


I was never a “line litigator.” But, I was involved in defending and prosecuting thousands of cases during the “Legacy INS Phase” of my career. I also participated in thousands more cases as an appellate and trial judge during the last 21 years at EOIR.

One of my jobs in providing litigation assistance as the Deputy General Counsel of the INS was to make sure my “institutional clients” did not comment on pending cases. Such comments both unnecessarily antagonized the judges hearing the cases and, on occasion, when folks didn’t heed my instructions, completely “tanked” our positions by giving our opponents new arguments.

As a sitting judge, I can guarantee that one of the least successful approaches was for a lawyer to insult my intelligence or integrity and then turn around and ask me to help out his or her client. Sure, in the end, I had to separate the law from the lawyer and do the right thing. But, it certainly interfered with the effectiveness of the lawyer’s communication and made it more difficult for me to get to the substance of his or her client’s case.

And, one thing that certainly infuriated all judges, including me, was for a lawyer to represent one thing in court and then have his or her client do something else. It made me lose confidence in the lawyer’s reliability and integrity and his or her ability to control and speak for the client. I can remember “chewing out” several lawyers at Master Calendar for misrepresenting facts or law to me in their briefs or oral arguments.

It appears that the Trump Administration’s combination of arrogance, ignorance, and disrespect for the court system and the role of judges is undermining both their credibility and the credibility of the Department of Justice career lawyers whose job is to represent them over and over again before most of the same judges. Once a judge loses faith in the credibility of a lawyer and/or her or his client, “bad things will happen” and they do.



CNN: There Are Human Faces And Real Stories Of Horror, Pain, Perseverance, Belief, And Redemption Exposing The Trump Administration’s Wrong-Headed Attempt To Ban Refugees!

Catherine E. Shoichet writes on CNN:

“For minutes that feel like hours, Abdalla and his family stand like statues in a line, their eyes laser focused on the set of escalators at Atlanta’s airport where waves of arriving passengers emerge.
Businessmen with briefcases, pilots in uniforms and families wearing winter coats come into view.
But so far, there’s no sign of Batulo.
Suddenly, Abdalla yells and bolts across the waiting area, past a bright red security line on the floor that says “DO NOT CROSS.”
Guards shout. He doesn’t hear them. To Abdalla, only one thing matters now. He sees his daughter’s face and sprints toward the light.
He sweeps Batulo into his arms and carries her like a running back toward a wall on the other side of the lobby. The rest of the family follows, like a trail behind a comet as it speeds through the sky.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Batulo is still wearing a plastic pouch around her neck, stuffed with a plane ticket and an ID card from the International Organization for Migration.
“I am a refugee from SOMALIA,” the card says. “I may not speak English and need help to find my next flight.”
Batulo flew more than 10,000 miles to get here, from Kakuma to Nairobi to Dubai to New York to Atlanta. American Airlines Flight 1687 brought her to a strange city, yet she is home.
Abdalla and his family sit on the airport floor, pressed together like puzzle pieces. They cling to each other, sobbing.
A new home
Batulo beams as she sips a can of Sprite through a straw.
Her sisters tug at her arms, pulling her from room to room as they show her their new home.
The living room floor is covered with plates stacked high with food that the family cooked together for hours as they awaited her arrival.
They sit in a circle, devouring baked chicken, fried fish, french fries and ugali, a cornmeal dish they prepared especially for Batulo.
Abdalla sends a voice message to Ramadhan, his oldest son, who’s still living in Kakuma. Batulo made it safely, he says.

Ramadhan replies that he’s relieved. “God willing,” he says, “someday I will make it, too.”
As they eat, Batulo’s family peppers her with questions.
Is there a still a mango hanging from the tree outside the transit center in Nairobi?
How many countries did you fly through to get here?
When we left, you didn’t look like this. Why are you so thin?
Ibrahim brings out some of his favorite new toys. Together, they sing the ABCs. He falls asleep, curled up on the floor beside his sister.
Abdalla yawns, then quickly gulps down a cup of coffee.
Exhaustion is starting to set in, but this is a moment he doesn’t want to miss. He leans back against the couch and listens to his daughters’ voices.
The only sound he hears is laughter.”


Read the complete story and see the video and pictures at the link. Happy ending to this one, thanks to the U.S. Courts which stood up to President Trump and his minions. As you read the entire story, compare the real situation of real refugees, human beings in great need, with the “fake news” and fear mongering put forth by the Trump Administration in an attempt to justify the unjustifiable.





Trump Administration Quietly Drops 9th Circuit Fight In Washington v. Trump — Will Rescind 1st Travel Ban EO And Issue Another!

Dara Lind reports on VOX:

“The first thing President Donald Trump repeals and replaces is going to be his own executive order on immigration.

Both Trump, in a press conference, and the Department of Justice, in a court filing, said Thursday that the president is abandoning the order he signed January 27, banning all visa holders from seven majority-Muslim countries and nearly all refugees from entering the United States.

The ban was only in effect for a week before being put on hold by a federal court — and judges around the country have been less than sympathetic to the administration’s arguments for its constitutionality. President Trump continues to believe the judges’ ruling was “a bad decision.” But he’s buckling to it anyway.”


The Department of Justice asked the full 9th Circuit to hold the case (Washington v. Trump) in abeyance until a new Executive Order is issued. Presumably, the Department will then argue that the new EO “moots” the case and that the full court therefore should vacate the decision of the 9th Circuit panel temporarily restraining the first Executive Order. In other words, there would no longer be a “case or controversy” once the first EO is rescinded.

There may well be challenges to the new Executive Order.  We will just have to wait and see what it looks like. Most observers expect that the new order will be limited to individuals who have never entered the United States. It might therefore be more difficult to formulate a successful constitutional challenge.

However a separate suite before Judge Brinkema in the EDVA, Aziz v. Trump, analyzed in earlier blogs, had a “religious discrimination” finding that might have a better chance of applying to those whose relatives or businesses are affected by a new EO.

The full article at the link contains a further link to the relevant section of the Department’s latest filing in the 9th Circuit.

Late Breaking Update:

Reuters reports that the 9th Circuit has agreed to hold action on Washington v. Trump pending “further developments.”



The Hill: N. Rappaport Predicts That Trump Will Have Slam Dunk Win If “Travel Ban” Case Gets To Supremes!

“Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court. The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.

The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.
The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits. The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.

I have found no merit in the States arguments in support of either of those claims.”


Read Nolan’s complete article at the link which gives his reasons for finding both the Due Process and Religious Discrimination Claims under the Constitution without merit.  Additionally, Nolan wrote an earlier article in The Hill on February 8, 2017, which I inadvertently missed, expanding upon his views of the nature of Presidential authority in this area:

I doubt that this case will reach the Supremes in its current posture for four reasons: 1) the Court generally does not review cases at the TRO stage; 2) with only eight Justices and having split evenly on the last major challenge to Executive Power (involving the Obama Administrations so-called DAPA program) I doubt the Court wants to take this on right now; 3) at the TRO stage, the record is very sparse and the Court often looks through the record for some non-Constitutional basis to avoid sweeping rulings; 4) the Court has complete discretion as to whether to grant review in this situation and does not have to provide any reasons for denying review.

As to the merits, I doubt that the EO as currently drafted can pass constitutional muster. For example, as noted by the 9th Circuit panel, a returning lawful permanent resident alien is entitled to full due process under Supreme Court rulings. Whatever that might mean in the section 212(f) context, it has to involve, at a minimum, a hearing before a quasi- judicial official with some type of Article III judicial review. To the extent that Nolan suggests that the President himself can make such determinations or delegate them to non-quasi-judicial officials I disagree.

Also, someone coming to the U.S. with a positive overseas refugee determination would clearly be entitled to a fundamentally fair forum in which to make claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Indeed, anyone arriving in the United States has such a right.

I recognize the Sierra Leonian example cited by Nolan in his 02/08/17 article, and apparently that case was affirmed by the BIA and the 2d Circuit in unpublished decisions. However, it seems to me that under the CAT, a full due process hearing is required before returning individuals to a country where they might be tortured, even where that country has given “diplomatic assurances” that the individual will not be tortured.  See Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008). I also doubt that withholding of removal, which can be granted to someone arriving at a land border after an order of removal has been entered, really is an “entry” under the INA.

These are just the most glaring examples of the lack of thought, judgement, and legal analysis that went into this ill-advised Executive Order. Haste makes waste. Bad cases make bad law, etc.

I’m inclined to believe, however, that it is likely that a carefully drafted and properly vetted Executive Order which applies only to individuals overseas who have never been admitted to the U.S., and which provides at least some type of “facially legitimate” factual basis to support it (and I don’t mean the idea that prior Congressional and Executive actions on the entirely different issue of whether an individual who was not from one of these countries, but who had visited one of these countries, could come in under a waiver of any visa vetting at all — “visa waiver”) would likely be upheld by the Court.

But, that’s probably not going to happen under this Administration. Indeed, President Trump is making the strongest possible case that our doctrine of separation of powers and the continued existence of our very constitutional republic will require, if anything, an even higher degree of judicial scrutiny of almost all Executive actions. A President who surrounds himself with such obviously unqualified individuals as Steve Bannon, Stephen Miller, and Mike Flynn shows just why the President’s judgement is not to be trusted — on this or almost anything else.

There is a reason why this issue hasn’t come up before in our history. It’s called wise and prudent Executive judgement. And, it’s sorely lacking in this Administration.






Wow! Even Professor John “Johnny Waterboard” Yoo Thinks That Four Years Of Trump’s “‘So-called’ Judgement” Could Be Torture!

Yoo, author of the notorious “Torture Memos” under the Bush II DOJ, and his colleague Professor Sai Prakash (who, as far as I know, had nothing whatsoever to do with said Torture Memo) write in today’s Washington Post:

“But if presidential attacks on the courts are nothing new, the history also underscores the smallness of Mr. Trump’s vision. Jefferson, Lincoln and FDR knew when to speak and when to keep silent. They invoked the great powers of the presidency to oppose the Supreme Court only when fundamental constitutional questions were at stake: the punishment of political dissent; secession and slavery; Congress’s power to regulate the economy. The occasion for Mr. Trump’s fury is a temporary restraining order of a temporary suspension of immigration from seven countries. Mr. Trump still has the opportunity to prevail on the merits. He hasn’t lost the case—at least not yet.

The Trump administration will often appear in court over the next four or eight years. It will lose plenty of cases, because, like its predecessors, it will push the legal envelope. If the president publicly vents every time he loses a ruling, his complaints will recede into background noise.

Questioning judicial decisions, and even the judiciary’s legitimacy, is entirely proper. But a wise president will reserve such attacks for extraordinary matters of state involving the highest constitutional principles. To do otherwise risks dissipating the executive’s energy, weakening the president’s agenda, and wasting his political capital. When criticizing the Supreme Court for upholding the Bank of the United States, declaring Dred Scott a slave, or striking down the New Deal, presidents were advancing constitutional agendas worthy of a fierce attack on the courts. Mr. Trump is upset about losing a minor procedural test of a temporary executive order. If he doesn’t learn to be more judicious, we’re in for a long four years.”

Kinda says it all. Yoo and Prakash are right. All Administrations lose cases on a daily basis in Federal Courts throughout the county — literally thousands of them over a full Administration.

I know, because one of my duties as the Deputy General Counsel of the “Legacy INS” was to to write or supervise the writing of “Adverse Decision Reports” (known in the DOJ litigation business as “Tombstones”) to the Solicitor General’s Office. It could have been almost a full time job (without some “help from my friends” in the office and the field).

And, of course, the INS was only one of many Government agencies litigating in the Federal Courts every day. We at the “Legacy INS” even had our own “dedicated litigation division,” known as the “Office of Immigration Litigation (“OIL”)” within the Civil Division. Also, no (or almost no) term of the Supreme Court goes by without the USG being on the “losing” side of one or more major decisions.

So, the Prez better get used to it. He could start by paying more attention to the career “Federal Court Pros” in the Solicitor General’s Office and OIL and less attention to the views of guys like Stephen Miller, Steve Bannon, and even VP Mike Pence who are totally clueless as to how to conduct winning Federal litigation. Indeed, as Governor of Indiana, Pence got “totally creamed” in his disingenuous, mean-spirited, and illegal attempt to bar the resettlement of well-screened Syrian refugee families in Indiana. But, some folks never learn (and. perhaps, never will).



Matt Zapotsky in WashPost: “7 key take-aways from the court’s ruling on Trump’s immigration order”



BREAKING: 9th Circuit Panel Unanimously Reject’s Administration’s Request For Stay Of Travel Ban — Read The Complete Decision Here!



I think it will be hard for the Administration to prevail at this stage.  I’d be surprised if either the full (“en banc”) 9th Circuit or the Supreme Court want to get involved at the TRO stage.

President Trump Tweets “See You In Court.” (Hasn’t that line been used before?)  But, as indicated above, I’m not sure that the Supreme Court (particularly with only 8 Justices) will want to intervene at this point. The Supremes did take the Obama Immigration Executive Order case at a preliminary stage; but they were unable to resolve it on the merits, affirming the lower court’s injunction by an evenly divided Court. Not clear why the Court would be in a better position to resolve this one. But, we’ll find out shortly.



WashPost: The Fix: Trump Threatens Third Branch!

Aaron Blake writes in the Washington Post:

“In a speech to law enforcement officials, Feb. 8, President Trump read federal law giving broad him broad authority to set immigration restrictions, adding, “a bad high school student would understand this.” (The Washington Post)

The 9th Circuit Court of Appeals is now weighing what to do with President Trump’s travel ban. And Trump did his best Wednesday to put his finger on the scales of justice.

Continuing a highly unusual days-long effort by a president, Trump issued a stark warning to the three-judge panel and, really, the entire court system: Run afoul of me, and you may just pay a price.

In a speech in front of law enforcement in Washington, Trump suggested to the three-judge panel that they would marginalize themselves politically if they decide the wrong way. Trump has said similar things about the judge who previously halted his travel ban — albeit after the decision had come down.

The comments were oblique, but Trump’s point was crystal clear.

“If these judges wanted to help the court in terms of respect for the court, they’d do what they should be doing,” Trump said, in a comment thick with subtext. “It’s so sad.”

He added: “I don’t ever want to call a court biased, so I won’t call it biased. But courts seem to be so political, and it would be so great for our justice system if they would read [the law] and do what’s right.”

If that isn’t a threat to marshal support against the American court system and fight it politically, I’m not sure what is. Trump is basically saying: That’s a nice reputation you’ve got there. It’d be a shame if something happened to it.”


So, if this is the contemptuous and disrespectful way Trump treats the Article III Courts, what does that say about the chances for fairness and due process in the U.S. Immigration Court System, where all the U.S. Immigration Judges and the Appellate Immigration Judges on the Board of Immigration Appeals work directly for Trump’s friend and enthusiastic supporter, Attorney General Jeff Sessions, a well-established “immigration hard liner” who is reputed to be the “inspiration” behind Trump’s immigration enforcement program.

How long will an Immigration Judge who rules in favor of an individual who is one of Trump’s “removal priorities” or an Appellate Immigration Judge who speaks out in favor of due process in the face of Trump’s “move ’em all out” Executive Orders remain on the bench. Not long, I suspect. Is Attorney General Jeff Sessions really going to stand up for and protect a conscientious Immigration Judge who in good faith attempts to follow the law even when it conflicts with Trump’s edicts? Not likely.

The only question probably will be whether Article III Judges will stand up to Trump’s bullying and excesses and force Constitutional due process back into the system after Trump and Sessions drain it out. So far, the Article III Judiciary seems to be almost as unfazed by Trump’s bulling and threats as, say, the cast of SNL. But, it’s early in the game. And even Article III Judges eventually might find that they have to pick their fights. Will the due process rights of foreign nationals be one of them? Only time will tell. Stay tuned.



Summaries Of 9th Cir. Travel Ban OA & Judicial Bios From WSJ


“An appeals court pressed a Justice Department lawyer Tuesday on whether President Donald Trump’s executive order on immigration is discriminatory, while also pushing an attorney for the two states fighting the order to explain how it could be unconstitutional to bar entry of people from terror-prone countries, the Justice Department lawyer arguing on behalf of the administration, urged the appeals court to remove a lower-court injunction on the order, arguing that the court shouldn’t second-guess the president’s judgment when it came to a question of national security.

The executive order, Mr. Flentje told a three-judge panel of the San Francisco-based Ninth U.S. Circuit Court of Appeals, struck a balance between security concerns and the practice of allowing people to enter the country.

“The president struck that balance, and the district court’s order has upset that balance,” he said. “This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.’’

The oral arguments on whether to reinstate some, all, or none of President Donald Trump’s executive order on immigration represented a crucial test in the fast-moving legal battle over White House efforts to restrict entry into the U.S. The Jan. 27 order suspended U.S. entry for visitors from seven predominantly Muslim countries for at least 90 days, froze the entire U.S. refugee program for four months and indefinitely banned refugees from Syria. The administration argues the action was needed to keep terrorists from domestic soil.

The president weighed in on Twitter on Wednesday morning: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”

The legal clash, which is also playing out in other courts around the country, represents a remarkable test of the powers of a new president determined to act quickly and aggressively to follow up on his campaign promises. Mr. Trump, who promised repeatedly on the campaign trail to tighten what he called lax immigration policies, issued his executive order a week after taking office, generating widespread protests as well as plaudits and setting off an immediate debate over the extent of executive branch authority.”

. . . .

The court isn’t making a final determination on the legality of Mr. Trump’s order for now. Instead, it must decide what immigration rules will be in effect during the coming months while court proceedings on the substance of the president’s restrictions continue.”

Read the WSJ’s bios of the three U.S. Court of Appeals Judges on the panel: Judge William C. Canby Jr., Judge Richard Clifton, Judge Michelle Friedland:


This one still seems “too close to call.”  There are substantial arguments on both sides. Courts generally do not like to interfere with the authority of the President in the fields of immigration, national security and foreign policy. On the other hand, appellate courts are usually very reluctant to interfere with trial court proceedings at the very preliminary TRO stage. While this might eventually end up in the Supreme Court, as most commentators assume, I’m skeptical it will go there any time soon, given the Supreme’s current short-handed configuration.



BREAKING: WashPost: 9th Circuit Schedules Oral Argument On Trump Administration’s Stay Request For Tomorrow (Tuesday, Feb. 7) AT 6 PM (EST)!

The Washington Post reports tonight:

“A federal appeals court will hear arguments Tuesday at 6 p.m. Eastern on whether to restore President Trump’s controversial immigration order, which a lower court judge has temporarily put on hold.

The scheduling of the hearing came as Justice Department lawyers on Monday made what is likely their final pitch to a federal appeals court to immediately restore President Trump’s controversial immigration order, while tech companies, law professors and former high-ranking national security officials joined a mushrooming legal campaign to keep the measure suspended.

“The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees,” Justice Department lawyers wrote.”


According to NBC 4 News tonight, the DOJ also has a “Plan B” up its sleeve to present to the Ninth Circuit:  limit the scope of Judge Robart’s TRO to those already in the U.S.

As I emphasized to my students at Georgetown Law, when dealing with asylum and immigration issues, “It’s always wise to have Plan B.”

For those who want to tune in to the oral argument tomorrow, it’s streaming live on the 9th Circuit’s website: