Below is my recent column about a type of new article of faith for lawyers in opposing President Donald Trump and his Administration. Here is the column:
It seems these days like lawyers are proving Jeremy Bentham correct that “lawyers are the only persons in whom ignorance of the law is not punished.” Frankly, President Trump appears to bring out the worst in some lawyers. Indeed, opposing Trump appears to be a new article of faith for lawyers, including some who have been lionized for conduct that is facially unprofessional and arguably unethical.
Sally Yates and the obstruction of executive power
The strange influence that Trump has on lawyers was immediately apparent within days of his taking the oath of office. Acting Attorney General Sally Yates ordered the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. In a letter to the president, Yates said she was not convinced that the law is just or right.
It was a curious position since the Justice Department argued for the last eight years, and as recently as 2016, that President Obama had sweeping authority over immigration. It is also the Justice Department that defended the alleged “torture program” under the Bush Administration without Yates or others taking such a stand. Yet, Yates effectively dared Trump to fire her over the immigration order and he did so.
Yates was immediately celebrated as a hero by many. Sen. Charles Schumer (D-N.Y.) called her firing another “Saturday Night Massacre,” referring to Nixon’s forcing the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus. Yates, however, was less a political massacre as it was a ritualistic suicide. Yates could have resigned like Richardson and Ruckelshaus.
Indeed, she only had a couple days left at Justice Department. But she sought to prevent an entire federal department from supporting a sitting president of the United States. It was a highly unprofessional act that raised serious ethical questions about the duties of a government lawyer. Among the bar rules controlling the conduct of lawyers in Washington, Rule 1.3 requires any withdrawal to be done without harming the client.
Yates did not conclude that the order was unlawful but was simply not convinced of its legality even though many (including lawyers at the Justice Department) argued that the president had this authority. She articulated a reason to resign from her position but not to obstruct a president. Under the same logic, Yates’ position would allow officials to obstruct a host of executive actions based on the failure of the president to convince them of their wisdom.
Monica Herranz and the shielding of illegal immigrants
Oregon Judge Monica Herranz allegedly was not satisfied with just ordering staff not to assist the Trump administration. Herranz held a hearing with Diddier Pacheco Salazar, 22, an illegal immigrant who pleaded guilty to a driving under the influence (DUI) case. Immigration officers were waiting outside of the courthouse to take Salazar into custody. However, he never emerged. When they went into the courtroom, he was gone. U.S. Immigration and Customs Enforcement (ICE) officers accused Herranz of allowing Salazar to use her personal chamber door to evade the officers.
If true, it was an act of knowing obstruction. It further contravenes federal law which makes it a crime to conceal, harbor, or shield an illegal immigrant from detection. Nevertheless, the U.S. attorney declined to criminally investigate the judge who will instead be subject to possible judicial discipline. In the meantime, many are celebrating a judge who is accused of using her judicial office to obstruct the enforcement of federal law.
Preet Bharara and the refusal to resign from his post
Most recently, the U.S. Attorney for Manhattan, Preet Bharara, took a baffling position in refusing a presidential directive to resign. The most charitable thing to say about Bharara’s action is that it was more unhinged than unethical. After Attorney General Jeff Sessions asked for the resignations of all U.S. attorneys, a standard change of political appointees in a new administration. New administrations (particularly with a change of party) often demand such resignations. Bill Clintondemanded the resignation of all U.S. attorneys and no Democrats or liberals objected. George W. Bush had more of a transition but ultimately replaced all but one U.S. attorneys.
Ironically, presidents will sometimes ask for global resignations from political appointees only to decline to accept some on an individual basis. Bharara’s action guaranteed that he would not be one of them. U.S. Attorneys Dana Boente and Rod Rosenstein did submit their letters and the president reportedly declined to accept their resignations. We will never know if Bharara might have been on that short list because he placed himself on an even shorter list in refusing to resign.
Bharara said that he believed that Trump agreed to have him continue as U.S. attorney. Yet, even that is true, what professional standard is Bharara relying on for this obstructive position? Bharara is a rebel without a cause. He has no vested interest in this political position even if a promise were made. Yet, he is being again lionized for his highly unprofessional and frankly juvenile demand that he be fired. Harvard Law Professor Laurence Tribe tweeted Bahara “is a hero. His firing was no ordinary turnover.”
All U.S. attorneys serve at the pleasure of the president. Bharara insisted on being fired despite the fact that Trump was entirely within his right to ask for resignations and was following the course of other presidents. It is hard not to conclude that Bharara was using his office to try to embarrass the president of the United States. By doing so, he played to political passions rather than performing his professional duties.
Attacking or obstructing Trump appears to be an accepted exemption from long-standing rules of legal practice and judgment. It is the legal version of the papal indulgences, which once forgave or reduced the punishment for sins. The legal indulgence appears to allow (and even celebrate) unprofessional acts, when taken in opposition to Trump or his administration. However, legal rules mean little if they become discretionary when they might support Trump. And if legal rules mean little, then lawyers will mean even less in this administration or any administration.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory and has been published in the law journals of Harvard, Cornell, Duke, Georgetown, and Northwestern University.
Last night, U.S. District Judge Derrick K. Watson issued a
temporary restraining order that prevents the second immigration order of President Donald Trump from going into effect on Thursday. The 43-page opinion is scathing and relies not only on the statements of President Trump but the recent statements of his chief aide Stephen Miller. While I respectfully disagree with Judge Watson and view his decision as contrary to the weight of existing case law, the opinion again shows the perils of presidents and their aides speaking publicly about litigation. Political facing saving comments can be case legal damaging comments. Yet, I still believe that Judge Watson relied too much on campaign statements and television interviews to overcome the facial neutrality of the language of the executive order.
Watson found that there was a “strong likelihood of success” for challengers because “a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.” He strongly dismissed the argument that this is not a religious ban since it did not impact the vast majority of Muslims: “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
As predicted, the Court also relied on the series of delays in the rollout of the second order as evidence that undermined the national security rationale: “Other indicia of pretext asserted by Plaintiffs include the delayed timing of the Executive Order, which detracts from the national security urgency claimed by the Administration.”
Watson used Trump’s own campaign trail comments and observed that “there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’” He also cited the ill-considered and highly damaging public comments of Rudolph Giuliani saying that he was told by Trump to find a legal way of doing a Muslim ban. He even relied on a press release:
The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear. The remarkable facts at issue here require no such Case 1:17-cv-00050-DKW-KSC Document 219 Filed 03/15/17 Page 34 of 43 PageID #: 4389 35 impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)).
He also cited the comments of Stephen Miller from a much criticized public interview. In the interview, Miller (who reportedly played a major role in the first order) insisted that the second order did little beyond addressing “mostly minor technical differences.” Of course, the problem with that statement is that the first order was found presumptively unconstitutional by the Ninth Circuit. Due to the poor drafting and poor defense of the first order, the Ninth Circuit ruling was not vacated and is still good precedent. Hawaii is in the Ninth Circuit. So, if the second order is basically the same, the court could conclude that it was on good ground to assume that the same basis for the Ninth Circuit opinion still exists with regard to the second order.
It is certainly true that the Supreme Court has been has said that courts may not “turn a blind eye to the context in which [a] policy arose.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005). However, I do not see how the use of these ill-considered comments can establish that the stated purpose of proper vetting is “secondary to a religious objective.”
As previously discussed, I believe that the odds favor the Administration in prevailing in the long run. It could face a mix of decisions on the lower courts as it did with the first order. However, this order is a better product and presumably the Justice Department will markedly improve its performance in the defense of the order. I do not see how a strong likelihood of prevailing could be maintained on existing case law, particularly under the establishment clause.
Notably, the Court (like the Ninth Circuit) does not discuss the President’s sweeping authority under INA Section 1182(f): “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” Moreover, since the Court rules on the basis of the First Amendment, it does not address the statutory claim that the President cannot discriminate under the INA based on nationality — an argument that I have been critical of in past discussions.
The Court also give surprisingly little attention of the record on poor vetting procedures in these countries and discussing the basis for the order — a serious flaw in its analysis. The decision spends more time on the atmospherics of the campaign than actual case analysis. It is not a particularly strong case and I believe is highly vulnerable on appeal as the Administration moves toward the Supreme Court.
Judges Inventing New Reasons to Obstruct Donald Trump’s Popular Immigration Reforms
15 Mar 2017 by Neil Munro
A federal judge in Hawaii says Muslims in America are unfairly and illegally discriminated against by Donald Trump’s effort to curb the immigration of violent Muslim refugees from war-torn Muslim countries.
Another judge in Wisconsin says a Syrian who recently was given asylum — and who is not even a citizen — has the right to ask a fellow judge for visas to fly his relatives into the United States, regardless of opposition from the U.S. government’s border, police and intelligence, and immigration agencies.
Three California judges and a judge in Washington State say the President’s sole right and solemn duty to guard the borders ends when a state suffers financial harm because its universities can’t import more fee-paying customers from restricted countries.
These left-wing judges are competing with each other to throw invented legalistic roadblocks in front of Trump’s legal and proper defense of the nation’s borders, said Hans Von Spakovsky, a former lawyer at the Department of Justice who is now working for the Heritage Foundation.
“I don’t think the [various judges] have any professional shame about it — in fact, they’re being applauded by newspaper editors for actually ignoring the [Congress’] law and [Supreme Court] rulings based on their own personal policy preferences,” he told Breitbart.
The judges’ grab for power, despite the plain text of the Congress’ law and despite prior Supreme Court decisions, “is destructive of the rule of law, which is the entire basis of our Republic,” he said.
“It is a very bad development that threatens our democracy … [and] it looks like it is going to get worse [because] we’re going to have more and more litigation, and it is very clear that the progressive left wants to use the courts to fight way our democracy works,” he said, adding “I think what they doing is very anti-democratic.”
The only fix, he said, is for Trump to aggressively push the Senate to confirm good judges for the 110 empty judicial seats around the nation.
Trump will be aided in this push because the Senate’s former Majority Leader, Democratic Sen. Harry Reid, changed the Senate rules to lower the 60-vote thresholds to end filibusters of judicial confirmation debates.
“The Trump administration has to remember that Harry Reid ended the [60-vote] filibuster for judges except for the Supreme Court [so] all they need are 51 votes to get any judge confirmed … They were given a gift by Harry Reid and they need to take it,” he said.
Trump must also disregard the Senate’s traditional “blue slip” process, which gives Senators a quiet veto over nominees to judicial seats in their states. Democrats used that process to push President George W. Bush to nominate progressive judges to Democratic-run states during his eight years in the White House. One of Bush’s “blue slip” progressives judges blocked Trump’s Executive Order in Washington State by declaring that universities and companies can ask judges to override Presidents’ curbs on immigration.
Trump and the GOP Senators “have to override that” blue-slip veto, Spakovsky said.
The judge in Washington State, James Robart, declared Feb. 3 that “the [president’s] executive order adversely effects the State’s residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.”
the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington … Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the [foreign] students, scholars, and faculty affected by the Executive Order.
… the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay [upholding Trump’s policy]
The Wisconsin decision was announced March 10 by Judge William Conley of the U.S. District Court for the Western District of Wisconsin, who went several steps further by saying an individual, who is not even a citizen, has the right to overrule the president if he or she can get a judge to agree. According to the Wisconsin judge’s order:
Plaintiff is a Sunni Muslim who, after being fully vetted by U.S. immigration authorities, was granted asylum status because of the torture and religious persecution he had suffered in Syria. he thereafter filed derivative asylum petitions to reunite with his wife and his only surviving child….. President Trump’s efforts to impose an immigration ban by executive order are threatening to stop Plaintiff’s derivative asylum petitions in their tracks.
From 2o13 to 2015, government data shows that 25,565 foreigners got asylum status — and according to Judge Conley — the right to bring their families into the United States regardless of Congres’ laws and the policy that an elected president promised to implement if he was democratically voted into the White House.
In Hawaii, Judge Derrick Watson decided that the elected President’s policy of defending Americans from Muslim jihadis who emerged from Muslim culture in Muslim countries might hurt Hawaii’s tourism industry, saying in his order that:
The State points to preliminary data from the Hawaii Tourism Authority, which suggests that during the interval of time that the first Executive Order was in place, the number of visitors to Hawai‘i from the Middle East dropped (data including visitors from Iran, Iraq, Syria and Yemen) … Because there is preliminary evidence that losses of current and future revenue are traceable to the Executive Order, this injury to the State’s proprietary interest also appears sufficient to confer standing.
The judge also opposed the President’s national defense against Islam’s violent doctrines by quoting the Muslim cleric’s testimony about”ethnicity” and children’s worries, saying:
[“My children] are deeply affected by the knowledge that the United States—their own country—would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and whohold the same religious beliefs. They do not fully understand why this is happening, but they feel hurt, confused, and sad.”
Alongside the judges’ escalating and expanding claims of their judicial power over elected presidents, the written law is entirely clear that the written Constitution and the elected Congress give only the elected president and his Senate-confirmed deputies the legal power to accept or deny entry of alien foreigners into the United States. Here’s the relevant statute, 8 U.S.C. § 1182 (f):
(f) Suspension of Entry or Imposition of Restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The Supreme Court has accepted and validated this “plenary power” of the elected president. For example, the court declared in its 1950 judgment lawsuit, titled Knauff v. Shaughnessy, that “It is not within the province of any court, unless expressly authorized by [congressional] law, to review the determination of the political branch of Government to exclude a given alien.”
The judge then prevented every other judge and every other state from following the President’s order, the judge making himself a one-man Supreme Court and substitute President.
The judge then held that American universities and immigrants living here can prohibit America from ever limiting immigration from Muslim-heavy countries, claiming the First Amendment gives Muslim-dominant nations a right of immigration to America.
Such arrogance and abuse of authority sound familiar? Such First Amendment favoritism toward Islam sound familiar? Well, Obama did appoint this judge, and a rule of thumb with federal judges is they tend to mirror the psychologies of the man who appointed them.
The judge’s ruling is completely lawless, mirroring Obama’s deep state allies in his shadow government’s attempt to sabotage the Trump presidency. There is no precedent for the court’s order. In fact, every precedent is against the court’s order; just read the detailed logic and scholastic citation of proper governing legal authorities from the decision of a moderately liberal Boston judge who upheld every part of Trump’s prior order.
To give you an idea of how lawless the decision is, just try to find the analogous case the Hawaii judge cites for his ruling; there is none, not one single prior example of another judge ever doing what this Judge did to the extent he did it.
To give you another example of how baseless the court’s ruling is, even liberal law professors and scribes criticized the more limited Ninth Circuit decision that this Hawaii judge goes far beyond. Liberal law professor Turley noted Trump should win a challenge against that ruling. Liberal democrat professor Alan Dershowitz noted the same. Liberal law scribe Jeffrey Toobin conceded the same.
Here are a few reasons why:
First, nationwide injunctions for non-party plaintiffs are not supposed to happen. A district judge presides over his district, not the nation. He should not overrule other judges, nor dictate his opinions on the whole nation. The law does not make him a single judge Supreme Court. The Supreme Court itself warned against issuing any relief not individually and specifically necessary to the plaintiffs before the court. Noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs,” the Supreme Court warned against extending its reach beyond “the particular federal plaintiffs” in the case.
The Ninth Circuit itself even admits this. The “principles of comity” compel that a court should not grant national relief when doing so would “create tensions” with courts in other circuits and “would encourage forum shopping.” The Ninth Circuit further reinforced that: “A federal court…may not attempt to determine the rights of parties not before the court.” What kind of case was that the Ninth Circuit saying not to extend your ruling beyond the plaintiffs in front of you? An immigration case (Nat’l Cir. for Immigration Rights v. INS, 743 F.2d 1365 (9th Cir. 1984). The Ninth Circuit repeated this principle again and again. That is why the Supreme Court reversed a California judge’s order just like this Hawaii judge’s order — imposing a national ban beyond his limited district jurisdiction of the parties before him.
Second, there is no constitutional right to a visa or a right of immigration or emigration. A quick recap of key Supreme Court decisions explains why. Aliens “outside the country receive no constitutional protection.” The Supreme Court repeatedly held an alien seeking initial admission to the United States “requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Thus, the President “may shut out aliens” whenever the President determine such “entry would be prejudicial to the interests of the United States.”
Admission into America is a privilege, not a right. Congress gave the President broad statutory authority to exclude any aliens he saw fit to. A full recitation of that law is useful, because it is the one law the Hawaii judge, like the Ninth Circuit, hid from:
(f)Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
The law is clear in the power it gives the President, in the statute cited above — 8 U.S.C. 1182(f). Like the Ninth Circuit decision before, the Hawaii judge goes out of his way to pretend this statute does not exist. Indeed, it is never addressed in any real way in the court’s entire opinion (much of which appeared pre-written prior to the oral argument).
Just as we have a right to decide which strangers enter our home and who sleeps next to our daughters’ bedroom or eats our family’s food, we as a country enjoy the democratic right to decide who enters our country, who lives next to us as a neighbor, and who enjoys the fruits of our ancestral inheritance. The Hawaii Obama judge went much further in the opposite direction: he claimed an immigrant here has a right to bring in whatever other immigrants he wants, even citizens from terror-riddled, Sharia-law-supporting, failed, corrupted states that cannot vet or screen would-be aliens entering America. Ask San Bernardino how that worked out.
Third, the First Amendment does not apply to foreign aliens. That is how we kept terror-minded anarchists out of the nation and sabotage-minded communists out of the nation. That is how every President for more than a century limited migrants based on ideology or statehood. That is why we were much more successful than Europe in limiting the anarchist-inspired violence (that led Europe into World War I) and in limiting communist internal sabotage (that led much of eastern Europe into communist totalitarianism).
Every federal court followed that process in limiting immigration from Muslim-terror nations after 9/11. This Hawaii court’s decision directly conflicts with those Circuits; but, per usual, it never even mentions any of those authorities. As the Second Circuit noted: “one major threat of terrorist attacks comes from radical Islamic groups. The September 11 attacks were facilitated by violations of immigration laws by aliens from predominantly Muslim nations. The Program was clearly tailored to those facts.” This court’s ruling would overturn all of that, and basically claims every president since Teddy Roosevelt violated the First Amendment in our immigration policies.
Put simply, the Hawaii federal judge ruled that because the imam was Muslim and his would-be migrant visas wish-list came from Muslim-dominant nations, the First Amendment gave him a special right to bring whomever he wanted into the country, even from terror-riddled countries in security compromised states the President recognized as a direct threat to the peace of the people.
The First Amendment has never applied to a right of immigration of foreign aliens, nor does it compel religious favoritism toward Muslims. This is the new left’s interpretation of the Constitution, and it is as perilous to our politics as the deep state within and radical Islam abroad.
The Hawaii Obama judge didn’t interpret the Constitution; he rewrote it, usurping to himself the sole power to control borders, then delegated the exercise of that power to a Muslim imam and his free visa wish list. The judge dishonored the rule of law in his order and disrespected our legal traditions and governing legal authorities in his reasoning for it. He effectively declared himself king and executioner.
Meet the new left’s America: foreigners first, Muslims preferred, law last, elections irrelevant.
Robert Barnes is a trial lawyer with high profile wins in constitutional, criminal, and civil law. You can follow him @Barnes_Law.
Republican-appointed judges on 9th Circuit voice support for Trump travel ban
Five judges on the Ninth Circuit Court of Appeals have broken ranks with their colleagues and voiced support for the legality of President Trump’s original travel ban.
The judges, all Republican appointees, said Wednesday they disagreed with the three-judge appeals panel that struck down the initial ban on travel from seven Muslim majority nations the administration said have terrorism problems and an inability to help the U.S. vet incoming immigrants.
“Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency,” the judges stated in an unsolicited filing.
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