Cracks appear Flynn ‘held illegal talks with Russia’ after court keeps travel ban on ice
The White House is ‘‘reviewing all of our options’’, but they appear to be limited.
The White House is considering rewriting the executive order barring refugees and citizens of seven Muslim-majority countries from entering the US, according to officials, indicating that the Trump administration may try to restore some aspects of the now-frozen travel ban or replace it with other face-saving measures.
The deliberations come after a three-judge panel with the US Court of Appeals for the 9th Circuit declined to immediately reinstate President Donald Trump’s controversial directive.
Minutes after one White House official said administration would not appeal the ruling upholding a temporary stay of the travel ban, White House chief of staff Reince Priebus said the White House was ‘‘reviewing all of our options in the court system’’, including possibly going to the Supreme Court.
Appearing with Japanese Prime Minister Shinzo Abe yesterday, Trump hinted at action that would happen outside the court process, though he did not indicate that he would back down from the court battle.
‘‘We’ll be doing something very rapidly having to do with additional security for our country,’’ Trump said. ‘‘You’ll be seeing that sometime next week. In addition, we will continue to go through the court process, and ultimately I have no doubt that we’ll win that particular case.’’
Officials, speaking on the condition of anonymity, said the White House and Justice Department were mulling whether to ask the full 9th Circuit or the Supreme Court to intervene. Government lawyers could alternatively wage a legal battle in the lower courts to address more squarely whether Trump’s directive violates the US Constitution.
Still, the White House’s options appear increasingly limited.
The 9th Circuit judges indicated that some of the administration’s proposed concessions – which presumably could turn into rewrites – don’t go far enough. Government lawyers also cannot undo Trump’s own campaign trail comments about wanting to stop all Muslims from entering the country, and his assertion after taking office that Christians would be given priority.
This was potentially compelling evidence that even a watered-down order might be intended to discriminate, said Leon Fresco, the deputy assistant attorney general for the Office of Immigration Litigation in former president Barack Obama’s Justice Department.
It is not clear exactly in what ways the White House might rewrite the order, and doing so would not automatically render moot the various lawsuits against it across the country.
For now, the ruling by the 9th Circuit Court keeps Trump’s travel ban on hold, meaning that people once barred from entering the US can continue to do so freely.
The court ruled that the government had not provided evidence of a national security crisis sufficient to overcome the harms two states alleged the ban was causing to businesses, universities and travellers in their states.
In a separate case in federal court in Virginia, a judge yesterday pressed the government to produce any evidence that a ban on travel was necessary on national security grounds.
Judge Leonie Brinkema said the presidential order ‘‘has all kinds of defects’’ and ‘‘clearly is overreaching’’ when it came to long-term residents of the US. She said there was ‘‘startling evidence’’ from national security professionals that the order ‘‘may be counterproductive to its stated goal’’ of keeping the nation safe.
The 9th Circuit judges also rejected the Justice Department’s request to merely narrow a lower judge’s freeze of the ban, saying – even if that freeze was too broad – it was ‘‘not our role to try, in effect, to rewrite the Executive Order’’.
Trump has forcefully asserted all week that judges have been wrong in their decisions on his order, and that US immigration law gives him broad authority to restrict foreigners from entering the US. He posted yesterday a quote noting that the 9th Circuit judges had not cited the section of the Immigration and Nationality Act that gives him such powers.
In the court battle before the 9th Circuit, Justice Department lawyers said the court could permit travel for those ‘‘previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future’’, but not, perhaps, for those without visas already.
The judges rejected that argument, arguing that such relief would not help US citizens who ‘‘have an interest in specific noncitizens’ ability to travel to the United States’’. Nor would it allay concerns about the due process rights of people in the US illegally.
Justice Department lawyers also argued that the ban no longer applied to green card holders, and that challenges on those grounds should be invalidated. On that, too, the judges disagreed.
The White House could adjust the order in other ways – such as by exempting students or other particular types of people. This would be significant in that it might affect the ability of states such as Washington and Minnesota to sue. Donald Trump’s national security adviser held potentially illegal discussions over sanctions with the Russian ambassador to Washington before Inauguration Day, it has been claimed, just weeks after the administration denied such conversations took place.
Administration officials, including US Vice-President Mike Pence, have previously denied that punitive actions against Russia were covered during a series of discussions between Michael Flynn and Sergey Kislyak before and after last November’s election.
However, nine individuals working at intelligence agencies at the time told The Washington Post that sanctions related to Russian interference in the election had been explicitly discussed.
Two of them said that Flynn had urged Russia not to react to the measures imposed by President Barack Obama, making it clear that they would be reviewed once Trump took office.
A day after Obama ordered the expulsion of 35 suspected Russian spies and the closure of Russianowned compounds related to hacking, Russian President Vladimir Putin announced that Moscow would not retaliate. This broke a long practice of reciprocation on diplomatic expulsions, and came after Russia’s foreign minister had already vowed reprisals against the White House.
That raised the alarm in the Obama administration, triggering a search by spy agencies for clues to the unusual Russian reaction.
Intercepted communications revealed that Flynn and Kislyak had exchanged text messages and phone calls around the time of the decision.
Intelligence officials determined that sanctions were indeed discussed.
Flynn denied twice in an interview with the Post on Thursday that he had discussed the sanctions. On Friday, his spokesman told the paper that Flynn ‘‘indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up’’.
Pence said in a television interview in January that he had spoken with Flynn about the calls and that sanctions had not come up.
He also denied that there had been contact between members of the Trump team and Russia during the campaign. Those contacts are currently under investigation by the FBI, including Flynn’s calls to the ambassador.
‘‘I talked to General Flynn about that conversation, and actually was initiated on Christmas Day, he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place,’’ Pence said on CBS’s Face the Nation on January 15, referring to a Russian military jet that crashed into the Black Sea in December, killing 92 people.
‘‘It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.’’
Pressed by the show’s host, John Dickerson, Pence added that ‘‘those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions’’, and that ‘‘I don’t believe there were more conversations’’.
Representative Adam Schiff of California, the top Democrat on the House Intelligence Committee, said yesterday that Flynn should resign if the Post report was true.
‘‘I don’t know how people can have confidence in his judgment and truthfulness,’’ Schiff said. ‘‘I don’t know how other members of the administration could, if they were unwitting of the nature of his conversation.’’
Representative Steny Hoyer of Maryland, the second-ranking House Democratic Leader, said the paper’s report raised ‘‘serious alarm bells’’.
‘‘We need a full investigation to determine what the Trump administration promised Russia and if US laws were broken,’’ Hoyer said.