Pres­i­dent mud­dles travel ban court case

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASH­ING­TON — Pres­i­dent Trump’s lawyers found them­selves un­der­cut by their client Mon­day when the chief ex­ec­u­tive tweeted that he wanted a “much tougher ver­sion” of a “travel ban” and “not the wa­tered­down, po­lit­i­cally cor­rect ver­sion they sub­mit­ted” to the Supreme Court last week.

In four tweets posted be­tween 6:25 a.m. and 6:44 a.m. EDT, the pres­i­dent crit­i­cized his Jus­tice Depart­ment for aban­don­ing the “orig­i­nal travel ban,” which was blocked by judges in Fe­bru­ary after it caused chaos at air­ports across the na­tion.

“In any event we are EX­TREME VET­TING peo­ple com­ing into the U.S. in or­der to help keep our coun­try safe. The courts are slow and po­lit­i­cal!” Trump wrote.

That claim about vet­ting may come as news to the Supreme Court. In their ap­peals, Jus­tice Depart­ment lawyers have urged jus­tices to act on an emer­gency ba­sis to re­vive the travel or­der.

Speedy ac­tion was needed pre­cisely to al­low the gov­ern­ment to de­velop new vet­ting pro­ce­dures for peo­ple seek­ing to en­ter the U.S., the lawyers said. The process of com­ing up with new vet­ting pro­ce­dures was put

on hold when lower-court judges blocked Trump’s or­der from tak­ing ef­fect, they told the high court.

Le­gal ex­perts said Trump’s lat­est com­ments not only un­der­cut the gov­ern­ment’s le­gal strat­egy, but cast doubt on the need for the Supreme Court to in­ter­vene.

“They said this was a mat­ter of ur­gency. But if they are al­ready do­ing the ex­treme vet­ting, why do you need an or­der from the court?” asked Josh Black­mun, a Texas law pro­fes­sor and le­gal blog­ger.

“I don’t envy the solic­i­tor gen­eral,” he added, re­fer­ring to the gov­ern­ment lawyer who rep­re­sents the ad­min­is­tra­tion be­fore the Supreme Court.

The lawyers on the other side, fight­ing the Trump team in court, were quick to say they were pleased by the pres­i­dent’s com­ments.

“It’s kinda odd to have the de­fen­dant in Hawaii vs. Trump act­ing as our co­coun­sel,” Neal Katyal, an at­tor­ney for Hawaii, which has chal­lenged the travel or­der, said in a tweet of his own. “We don’t need the help but will take it!”

Omar Jad­wat, an at­tor­ney for the Amer­i­can Civil Lib­er­ties Union, said Trump had “un­der­cut the pic­ture the gov­ern­ment has been try­ing to paint.”

Lawyers for the gov­ern­ment “have made a dili­gent ef­fort to demon­strate” that the travel or­der “was not about re­li­gious an­i­mus,” he said, nor was it an ef­fort to ful­fill Trump’s cam­paign pledge to en­act a “Mus­lim ban.”

But Trump’s tweets be­lie those claims, he said.

“It shows that the ban is a ban, and that’s the goal. It is not about de­vel­op­ing new vet­ting pro­ce­dures,” he said.

Next week, ACLU lawyers will file a for­mal re­sponse in the Supreme Court, and Jad­wat said he had not yet de­cided on how to han­dle the lat­est tweets. “They cer­tainly seem rel­e­vant,” he said.

Even a notable ad­min­is­tra­tion sup­porter joined the crit­i­cism of Trump’s tweet­ing.

Ge­orge Con­way, a prom­i­nent New York lawyer who was con­sid­ered for two top Jus­tice Depart­ment posts and is the hus­band of White House ad­vi­sor Kellyanne Con­way, took to Twit­ter to say that Trump’s words “won’t help” the solic­i­tor gen­eral win five votes at the Supreme Court.

Con­way fol­lowed up with sev­eral tweets later in the day in which he said that he still “very, very strongly” sup­ported Trump and his ad­min­is­tra­tion.

But, he added, “The point can­not be stressed enough that tweets on le­gal mat­ters se­ri­ously un­der­mine [the ad­min­is­tra­tion’s] agenda and POTUS — and those who sup­port him, as I do, need to re­in­force that point and not be shy about it.”

An­other se­nior Repub­li­can le­gal fig­ure is­sued a more scathing as­sess­ment of Trump’s state­ments.

“The im­pul­sive, un­con­trolled, ill-in­formed pres­i­dent in­fects the le­gal sound­ness of ev­ery­thing his ad­min­is­tra­tion does,” Jack Gold­smith, a Har­vard Univer­sity law pro­fes­sor who served as a top Jus­tice Depart­ment of­fi­cial un­der Ge­orge W. Bush, wrote on Twit­ter.

“Ev­ery­thing else ex­ec­u­tive would nor­mally win … will be much, much harder,” he added.

The pres­i­dent seemed un­de­terred. On Mon­day evening, he re­turned to Twit­ter.

“That’s right, we need a TRAVEL BAN for cer­tain DAN­GER­OUS coun­tries, not some po­lit­i­cally cor­rect term that won’t help us pro­tect our peo­ple!” he wrote.

Last week, Jus­tice Depart­ment lawyers filed a lengthy ap­peal at the Supreme Court that sought to min­i­mize the im­pact of Trump’s travel or­der. They said the re­vised ver­sion of the or­der called for a limited and “tem­po­rary pause” for cer­tain trav­el­ers from six coun­tries, not a travel ban.

But in his tweets on Mon­day, Trump said he did not agree with his Jus­tice Depart­ment or with how it char­ac­ter­ized what he planned to do.

“Peo­ple, the lawyers and the courts can call it what­ever they want, but I am call­ing it what we need and what it is, a TRAVEL BAN!” he said.

“The Jus­tice Depart­ment should have stayed with the orig­i­nal travel ban,” not the scaled-down ver­sion that is now be­fore the high court, he added.

The travel or­der saga be­gan on Dec. 7, 2015, when then-can­di­date Trump is­sued a news re­lease call­ing “for a total and com­plete shut­down of Mus­lims en­ter­ing the United States un­til our coun­try’s rep­re­sen­ta­tives can fig­ure out what is go­ing on.”

When he is­sued the first ver­sion of his travel or­der, on Jan. 27, one week after tak­ing of­fice, op­po­nents called it a thinly dis­guised ef­fort to en­act a re­li­gious-based ban on travel. As such, it vi­o­lated the Con­sti­tu­tion’s guar­an­tee of free­dom of re­li­gion, they said.

Fed­eral judges quickly blocked the first travel or­der from tak­ing ef­fect.

After weeks of vow­ing to take the case to the Supreme Court, Trump backed away in March, is­su­ing a re­vised ver­sion of the travel or­der that re­treated from many of the con­tro­ver­sial parts of the first ver­sion.

The in­di­vid­u­als and groups who chal­lenged the re­vised or­der, how­ever, say it re­mains mo­ti­vated by Trump’s de­sire to dis­crim­i­nate against Mus­lims.

Last month, the U.S. 4th Cir­cuit Court of Ap­peals ruled against the re­vised or­der. The rul­ing leaned heav­ily on Trump’s state­ments as a can­di­date, say­ing that they pro­vided ev­i­dence about the pres­i­dent’s true mo­ti­va­tion.

The Supreme Court is ex­pected to de­cide in a few weeks whether to hear the gov­ern­ment’s ap­peal of the 4th Cir­cuit rul­ing, per­haps in the fall, and also whether to al­low Trump’s or­der to take ef­fect in the mean­time.

How much at­ten­tion the jus­tices will pay to Trump’s lat­est re­marks re­mains un­known, but at least some le­gal ex­perts won­dered whether Trump was al­ready an­tic­i­pat­ing a de­feat.

“His tweets are so coun­ter­pro­duc­tive that one has to won­der if he wants to lose the case and gain an is­sue,” Wal­ter Dellinger, who served as act­ing solic­i­tor gen­eral in the Clin­ton ad­min­is­tra­tion, wrote in an email.

“If he won a 90-day ban to do a review of visa pro­ce­dures, that study might not come up with any­thing use­ful. Then what does he do? But if he loses the case, he can al­ways blame the judges for any­thing bad that hap­pens,” Dellinger said.

Ge­naro Molina Los An­ge­les Times

A JAN­UARY protest at Los An­ge­les In­ter­na­tional Air­port against Pres­i­dent Trump’s orig­i­nal travel or­der. Trump sent tweets Mon­day, including one below, crit­i­ciz­ing the Jus­tice Depart­ment for re­vis­ing that or­der.

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