The Justice Department’s defense of the Trump executive order is off to a rather shaky start after the Department failed to immediately file an emergency appeal after its loss in Seattle (opening entries for those banned under the order) and then, according to the State Department, overstated the number of revoked visas under the order by over 40,000. Given the recent order by now fired Acting Attorney General Sally Yates to bar the defense of the order, the surprising blunders could fuel concerns in the Administration.
These concerns are more about litigation rather than constitutional standards in this controversy. Regardless of how one feels about the merits, it is rare to see such blunders in a high profile case. As I discussed last night, the failure of the Justice Department to immediately file an emergency appeal of the order by U.S. District Court Senior Judge James L. Robart was surprising. There was no issued written opinion and thus no need for extended study. The basis for the appeal was already largely written given the earlier opposition filing. Most importantly, if you are arguing that the order is based on imminent concerns over national security from the entry from these countries, you would want to move with dispatch. Instead, the Department allowed entries to resume but saying that it hoped to get around to an emergency filing soon. That could also result in serious conflicts at airports again with any emergency order.
The blunder on the number of visas is particularly baffling. This is one of the few hard figures available in the litigation and was certain to be asked by the court. Yet, Erez Reuveni of the department’s Office of Immigration Litigation told U.S. District Judge Leonie Brinkema of Alexandria that 100,000 visas were revoked. Various news sites then ran with the high number revealed by Reuveni. That produced an immediate rebuke from the State Department that the Justice Department had just overstated the impact by almost half. The higher the number of revoked visas, the greater the harm from the order. The real number, according to the State Department, is less than 60,000.
The problem is that the 100,000 figure includes diplomatic and other visas that were actually exempted from the executive order, including expired visas. It is not clear where the Justice Department got the figure or who is responsible. This is the type of mistake that can happen by an attorney asking the wrong question or an agency advisor failing to give careful data to a litigation team. Either way it is surprising failure on a critical point — a point that worked against the argument being advanced in court on behalf of the government.
At the end of the day, these difference are unlikely to be determinative but they should have been avoided.