Shaky Start: Justice Department Overstates Number Of Revoked Visas In Virginia And Fails To Immediately File An Emergency Appeal In Washington State

600px-US-DeptOfJustice-Seal.svg DOJThe 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.

97 thoughts on “Shaky Start: Justice Department Overstates Number Of Revoked Visas In Virginia And Fails To Immediately File An Emergency Appeal In Washington State”

  1. CNN was spreading this more than anyone that GW Bush picked this judge specifically to try and say he was a conservative judge and impress everyone…really CNN needs to be exposed for the liberal mouthpiece that it is. They are light years from being neutral and they have their facts completely twisted half the time. Very sloppy news outfit.

  2. Swarthmore Granny has been all over this comment thread and others since this TRO came out claiming somehow since Bush nominated this guy that meant he was some sort of conservative. I tried to explain to her several times that Senators often play a large role in filling federal district court vacancies in their states, Washington has two liberal Democrat Senators, and it was at least as likely Judge Robart is a Democrat (liberal) as a Republican (conservative).

    Did she listen? No of course not, she thought her fact free ramblings and deliberate obtuseness was somehow a powerful one – two punch.

    Confirmed. Robart is a whacko liberal Judge chosen by Sen. Murray (D-WA).

    ” To cover up the embarrassing weakness of Judge Robart’s temporary restraining order, reporters at the Washington Post and elsewhere have trumpeted the fact that Robart was nominally appointed by President George W. Bush. They have done this to suggest that his ruling must have merit, because otherwise he would not have ruled against a President of the same party as the man who appointed him.

    But this is misleading, since Robart is a staunchly liberal judge whose appointment was effectively forced on Bush by liberal Senator Patty Murray in 2004, when Washington State had two liberal Senators… ”

    I asked her why, since she wasn’t interested in the facts, anyone should listen to her? That question has been answered now; nobody should listen to her unless you enjoy baseless leftist rumor and innuendo. Or as Squeekiy Fromme puts it, her “hogwash.” As if there’s any other kind of leftist argumentation.

      1. Exactly since Murray, along with the latest “magical negro” in the Dem party aka C. Booker voted against allowing people to bring in prescription drugs cheaper from Canada and other sources. DNC eats its own and this biatich is a prime example.

      2. Don’t forget her sister senator Maria Cantwell who championed in her initial campaign to protect seniors from high cost of prescriptions, even going so far to mention that people should not have to travel to Canada to get their meds (out of necessity).

        Years later, Cantwell voted recently to protect the drug industry by dropping the hammer on attempts to bring in meds from Canada. She also accepted half a million dollars from her handlers in the pharma business. More power to the people.

        1. Darren, was not aware of Cantwell. Sheesh. Are there ANY pols who actually do anything to help their constituents or are they all in the pocket of corporations?

  3. Jonathan,

    The way I feel about this is that mistakes (given Trump doesn’t have most of his AG staff in place yet) are nearly unavoidable. Like you said, whatever errors there were should not affect the main argument or the outcome. The principle should override.

    This is precisely because the decision on this will affect all future cases. For the sake of security in this country, future Presidents just cannot have their hands tied on this issue.

    The President has the authority to determine who gets in with a visa and who does not.

      1. And the law says the President can make that determination.

        8 U.S. Code § 1182 – Inadmissible aliens

        (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.

        Trump has the high ground, Benson. You don’t, and neither does this judge. In fact, this judge and all of the people trying to obstruct Trump are playing a stupid and dangerous game. Has anybody looked into why those seven countries, and not other countries such as Pakistan or Saudi Arabia that have produced terrorists, are on that list?

        The DoS designates only three countries in the world as state sponsors of terrorism. All of them are on that list. Syria, Iran, and Sudan. None of the information they might provide to vet applicants can be trusted. Of course, only Sudan fails on that one count alone.

        In addition to this country being a state sponsor of terrorism we have no diplomatic relations with Iran. The foreign interests section of the Swiss embassy in Tehran can provide consular services (passports, passport cars, records of foreign births and deaths) to US citizens only. It can not provide visa or green card services to non-citizens.

        This country is a war zone, in case no one has noticed. The government only controls a shifting percentage of its own of its own territory. We have diplomatic relations with Syria, but the embassy suspended operations in 2012. There is a US interests section at the Czech embassy. The only consular services it provides are records of foreign births and deaths for US citizens. No services for non-citizens.

        We have diplomatic relations with the Libyan government and an embassy in Tripoli. Which is the only territory in Libya the government controls. Leave Tripoli and you’re in the wild west.

        We have diplomatic relations with the Yemeni government and an embassy in Sana’a. The government doesn’t even control Sana’a. Armed groups roam the city and American journalists and aid workers are prime targets for kidnapping and have been detained for over a year at times.

        We have diplomatic relations with Iraq, of course, and an embassy in Baghdad. The Iraqis control more territory than the Libyans but their hold is tenuous. Americans who are stupid enough to ignore the warnings to stay the hell out of the country are told to stay away from large gatherings as those are prime targets for terrorists and stay away from IS-held areas and all international borders as terrorists and the Iranians operate pretty much at will deep into the frontiers.

        We have diplomatic relations with Somalia but haven’t had an embassy in Mogadishu since 1991. There is a US Somali mission that operates out of the US embassy in Nairobi Kenya. There are no consular services for anyone, citizen or non-citizen in Somalia. Everyone has to get to Nairobi somehow. And if a Somali were to walk in we’d have no way of knowing if they were from the Federal Government-controlled parts of the country, or Al Shabbab. And neither would the Federal Government of Somalia.

        It’s so stupid to call this a “Muslim Ban.” If it is it’s a pathetic one as we somehow failed to ban 90% of the Muslims in the world. It’s just stupid to let people in from countries where you literally can’t know if people are who they say they are. Either because they’re from countries that are state sponsors of terror, failed states, or some combination of the two. Just like in Somalia, now that we’re handing out visas again in Yemen, when someone walks into the embassy in Sana’a to apply he might very well be from one of those armed gangs/terrorists kidnapping Americans.

        Frankly anyone who thinks this is a good idea hates America.

        1. Thank you for this response.

          I can only suppose that the posters are a bunch of pedagogues that would rather “win” an argument than to strengthen the security of the country and the integrity of the immigration system.

          And really you have to wonder if the lawyers at Justice arent sandbagging the whole defense….

        2. No man is above the law, even a kook who stumbles into the White House. I refer you to the United States Constitution. The Founding Fathers were aware of the concept of a demagogue.

  4. The media is quite lame. Sort of lame duck. They chant things like “Chaos” and whatnot. Trump creates chaos they say. And, Trump thinks some long dead American is still alive. And other nonsense that the media throws out.

    I like the new Supreme Court nominee. I like the visa denial orders. I want a Wall. I don’t care if we have to pay for it. Maybe NATO should help pay for it.

    1. David: Do you mean the lawyers for the Dept of Justice or A.G.’s Office or, do you mean the commenters on this blog?

    1. Mespo, What you say?

      “The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

      An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as ‘an absurd and excessive extravagance.'”

      “It is true that, in the instance before us, the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.”

      “The impropriety of such interference will be clearly seen upon consideration of its possible consequences.”

      “Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case, could this court interfere on behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?”

      “These questions answer themselves.”

      “It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

      “It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson is relief against its execution by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State.”
      “The motion for leave to file the bill is, therefore, DENIED.”

      Mississippi v Johnson (1867)

  5. It is time that Hillary is asked what her position is on the Executive Order. And Biden. They have run silent, run deep.
    I voted for Hillary and regret it. I am now for The Donald. The media is disgusting.

  6. The unfortunate things is that even if one of the people to be vetted from one of the nations on President Trump’s list were to gain entry to the U.S., as a result of this court stay, and then went on to murder people, yelling the trademark “Allahu Akbar,” the leftist mainstream media and the Clinton-voters would STILL argue against the President’s order.

    They would say, “Just because one of these people got into the U.S. and committed a mass murder doesn’t mean that Trump’s program was a good one. Sometimes, these things just happen.”

    Or they would say, “The national origin of the person committing this mass murder had nothing to do with his crime, nor did his religion. This was a mental illness problem and Islam had nothing to do with this. Trump’s program wouldn’t have vetted the mentally ill.”

    Or they would say, “This horrible mass murder came about directly as a result of Trump’s racist, Islamophobic policies. Trump’s programs and rhetoric have inflamed otherwise peaceful Muslims and compelled them to join forces with ISIS, actually or in spirit, to commit mass murders such as this one.”

    But they would NEVER, under any circumstances admit or concede that President Trump’s program was a valid one and one that would have saved lives, no matter how obvious and self-evident the effectiveness of his program would have been in vetting the potential terrorist.

    Do I have the mainstream media and the Clinton-voters pegged down correctly? You know that I do, even if you are a member of one of those groups.,

    1. I agree with Ralph. The media has gone South. Like south of our border. Must be a lot of lame brains in the media.
      We will have some terror event. The Wall needs to be built. The OE needs to be back in place.

    2. If you want to stop killing of Americans you need to focus on sensible GUN CONTROL, but likely you have a selective view on which so-called “rights” are to be protected.

      1. I do focus on sensible gun control. That’s why I go through a lot of practice ammo. I control my gun very well, thank you.

        And I do have a selective view of which rights are to be protected. The ones written into the Bill of Rights and not the ones made up by activist judges, especially made up to conflict with those in the Bill of Rights.

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  8. This is an amazing collection of folks defending an unlawful EO. Treaties Trump Trump when they have been ratified by congress.

  9. DDT is just testing the waters. Almost everything that comes out of his mouth, directly or indirectly, can be assumed to be either a lie, as he lied pathologically during his entire campaign and it worked, or he’s simply testing the waters.

    This ban on immigrants did no real harm to America, economy or other wise, at least not yet-you won’t be able to connect for certainty the next death or deaths from an angry thug to his latest tomfoolery. DDT will spin it to his advantage and his minions will applaud and agree.

    DDT is making hay while the sun shines, striking while the iron is hot, etc. One of the key deciding factors that will partner with DDT’s concept of the best interests of the country, if not the primary factor, is the response of the voters or the outcomes of the next two elections, in two and four years. If the Senate switches sides in two years, then the Supreme Court will likely remain a 5 to 4 right leaning bench. If Ginsberg can hold out four years, perhaps????

    DDT is a force of nature not unlike any predator, in a cage. Right now he is testing the fences to see what he can do unrestrained. There is no need for this circus. DDT could have tightened up immigration quietly. The abrasive phone calls and all the other grandstanding has little if anything to do with the subject matter around which it revolves.

    If DDT did have the best interests of America truly in mind then he would be crafting the changes he believes necessary, forming alliances in every direction, and moving forward as quietly as possible within the boundaries of open disclosure. This sideshow is pure DDT. DDT is still campaigning, but for what?

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