Sunday Star-Times

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.

- February 12, 2017

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.

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 ?? REUTERS ?? US intelligen­ce officials say Donald Trump’s national security adviser Michael Flynn discussed sanctions with Sergey Kislyak, the Russian ambassador to Washington, before last November’s presidenti­al election.
REUTERS US intelligen­ce officials say Donald Trump’s national security adviser Michael Flynn discussed sanctions with Sergey Kislyak, the Russian ambassador to Washington, before last November’s presidenti­al election.
 ?? REUTERS ?? Nizar al-Qassab, an Iraqi Christian refugee from Mosul, sees his children off at Beirut internatio­nal airport before their flight to the United States. People from seven Muslim-majority countries, including Iraq, once barred from entering the US can...
REUTERS Nizar al-Qassab, an Iraqi Christian refugee from Mosul, sees his children off at Beirut internatio­nal airport before their flight to the United States. People from seven Muslim-majority countries, including Iraq, once barred from entering the US can...

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