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. I remember stories of Vote Hillary on computers at the State Dept and I am sure at the DoJ. If an attorney cannot get behind the order they should pass it off to someone who can, rather than tank it.

  2. The President better get someone in there fast and clean house. Looks like there are others hanging around with their own idea on what’s best for America. I hope the military has not been corrupted by the liberals, socialist and Marxist who are buried in the government. Pretty neat moves by the Dems the Russians are coming, Trump and Putin, the popular vote, don’t believe Wikileaks. “Ladies and gentlemen watch my left hand closely while my right hand lifts your wallets”.

  3. I think Pink Floyd had the answer. And if it ain’t pink your finger won’t stink.

  4. We don’t need no friggin Muslims
    We don’t need no thought control
    No dark sarcasm in the courtroom
    Judges leave them EOs alone
    Hey judgy leave them orders alone
    All in all it’s just another brick in the wall
    All in all you’re just another brick in the wall

  5. OMG, the crazies are on the loose. Time to stop reading this blog go do something useful with my day!

    1. Patriot is this from this website’s Ministry of Leftist Propaganda. The comment is always the same all of the time: Leftist is good; fascism is good; Jews and civilization are evil.

    1. “The mission was approved over dinner five days after the presidential inauguration by Trump and his closest advisers, including his son-in-law Jared Kushner and his special adviser and former Breitbart executive Stephen Bannon, as well as defence secretary General Jim Mattis.”

  6. So-called federal judge is biased? He was a George W. Bush appointee with 99-0 confirmation vote.

    1. So what if he’s a Bush appointee? You seem to think I and every other conservative should be really impressed by that. Let me tell you why I’m not.

      It’s normal for Senators from the state where the district court with a vacancy is located to recommend candidates to the President for the nomination. Usually as a courtesy, if both Senators are in agreement the President will submit the recommended nominee to the DoJ where they have a section that reviews their qualifications. Sometimes a member of the House of Representatives from the President’s party will make a recommendation. If that happens, and the Senators don’t object, the name may go to the DoJ for they same vetting.

      Do you actually think Bush went around looking for these judges he nominated? Bush placed 261 such judges on the federal bench. Do you actually think he’d know Judge Robart if he bumped into him on the way to the men’s room? And just because Bush nominated him doesn’t mean this guy is conservative. In case it escaped your eagle-eyed gaze both Senators from Washington, Murray and Cantwell are Democrats. And they were the Senators throughout his two terms.

      Whether one Senator recommended the nominee, a House member recommended the nominee, or the nominee came about by some other arcane method, as long as DoJ says they’re qualified and the two Senators from the state where the district judge will preside have not objections these nominations almost always sail through the confirmation process. 99-0 is about par for the course. Almost never does anyone vote against a district court nominee. They have no reason to. It’s just not that important; it’s the entry level position in the federal court system and no one spends much time on it. A lot of times the Senate doesn’t even hold a roll call vote; many nominations are approved on a unanimous voice vote.

      And no, it isn’t like this judge is biased, just not very competent.

      “This case has been brought in federal district court against the Trump administration by attorneys general of Washington and Minnesota with dreams of higher office in mind. Judge Robart has no such excuse.

      The case is styled State of Washington et al. v. Donald J. Trump. Judge Robart disposes of the issues in a decision less than seven pages long. The heart of the court’s order, such as it is, amounts to about one page. It is entirely conclusory. If the order had been submitted to me when I was teaching legal writing at the University of St. Thomas Law School in Minneapolis I would have agonized over whether to award it a D- for satisfying the the formal requirements (barely) or flunk it outright. At American Thinker, Ed Straker finds the order wanting. Ed’s assertions are at least arguable; the judge’s decision makes no arguments.”

      1. Excellent assessment and analysis, Steve57. Thanks for sharing your insights.

  7. This judge’s order states (in part) that Trump’s EO violates the Syrian refugees’ due process rights.

    When did foreign nationals residing abroad, refugee or otherwise, whose only connection to the United States is that they seek entry into this country acquire due process rights under our Constitution?

    Reminding me somewhat of Erez Reuveni’s convenient errors in the district court in VA that undermined the Trump administration’s case, I read a summary of the events in Judge Robart’s courtroom and it appears to me that Michelle Bennett of the United States Attorney’s Office for the Western District of Washington does not have her heart in her work.

    It certainly looks like the weaponized DoJ is trying to take a dive on this case.

  8. Career bureaucrats often think that they can impede the executive branch with impunity (though it may just be their natural incompetence showing itself).

    Pres. trump ought to establish an office in Nome, Alaska and transfer any failing bureaucrat there. If they go, they count paper clips; if they don’t, they leave government service.

    In spite of the protections offered by the civil service, there is always a way that a boss can punish a recalcitrant employee.

    1. Despite the oft repeated myth regarding the impossibility of removing a civil service employee, it is actually quite easy. You notify him/her that his work is deficient, and place him on a Performance Improvement Plan. The PIP gives him 90 days to improve. At the end of 90 days, the manager simply determines that he hasn’t improved and he’s canned. Every CS employee knows that once he’s placed on a PIP, the it’s time to start looking for another job, because it’s just a formality and the decision has already been made to fire him.

      The real problem with the federal system is the Senior Executive Service. These are upper level managers, so-called executives, that cannot be removed without a finding of misconduct. No matter how inept, they are transferred to another Executive position rather than removed. That’s why the Veteran’s Admin is such a disaster, because they have an utterly incompetent executive system that is untouchable.

      1. Foghat’s “Fool for the City” is a great rock tune, but it’s mahered (misspelling intentional) by its length and the fadeout at the close of the song. All of the musical ideas in it could and should have been covered in about 3.5 minutes. And while fadeouts can be appropriate ends for many songs, this one certainly called out for a tight ending on the main theme.

        Here’s an example of another great rock tune that masterly makes my points about the length and ending of how certain rock songs should be executed: Van Halen’s “So This Is Love.”

        And here’s another even earlier example, that’s almost too short, but not quite. It’s perfect, right down to its ending: Mountain’s “Mississippi Queen.”

        1. I was at the Inn of The Mountain Gods hotel/casino the first week in January. It is a beautiful property on an Apache reservation in Mescalero, NM. They were advertising for people to get their tickets for the Foghat concert in their showroom in later January.

          1. Cool name! Reminds me of the time I stayed at The Hall of the Mountain King, which oddly, you had to ride a trolley to get to. . . 🙂 (OK, that one is a stretch, but I am all hyped up on chocolate-covered espresso beans. I am trying to spend up my Starbucks card so that I can boycott them.)

            We have a lot of descendants of Apaches here in Louisiana. They were brought here as Mexican slaves several hundred years ago. I guess the French must have gotten a lot of them, too because Paris used to be full of them.

            Squeeky Fromm
            Girl Reporter

  9. Huffington Post offers uptodate information on any or all of the following list for the first 100 days ….

    notice anything missing

    Muslim Community
    LGBTQ Community
    African American Community

  10. I don’t believe these sort of things happen w/o a reason. But is the reason incompetence or internal bureaucratic resistance? The latter may sound funny, but it’s not. The wheel always turns full circle and it would not be appropriate for career DOJ people in the future to impede a Democratic Administration.

    The Democratic Party’s cry to resist for the sake of resistance is a call to anarchy. There are no ideas, principles or reasoning other than to impede Trump. The precedents in conduct being created will come back to haunt the Democrats and haunt America.

      1. The party that cheered when their President ruled by fiat, pen and phone is now going to preserve the rule of law?

        It’s a little early to be drinking that heavily, don’t you think?

        1. Obama did not defy a judge’s order to my knowledge.if you are aware of such an instance, please post.

            1. Have a busy day but please post what judge and what order he defied.. I will check in later in the day.

    1. We don’t know why this happened. The failure to file the appeal could have been because the Solicitor General’s office did not authorize the appeal. Appeals can’t go forward without authorization from the SG’s office. Using the wrong number is the kind of error that is made when things are moving quickly. An attorney Intentionally using the wrong number, knowing that the right number is available and that many other people in and out of the government are watching, is not a very plausible scenario.

      But let’s talk about your comment that Democrats may be resisting merely for the sake of resisting. I’m curious as to whether you were this concerned about Republican resistance for resistance’ sake during the prior administration. (Example: Garland’s nomination to the Supreme Court. Another example: McConnell’s statement that his primary goal was to ensure that Obama was a one term President. ) Or are you like many commenters here who just want their side to win, some of whom dress up their partisanship as being “principled”?

      I don’t disagree with your concern about potential resistance of direct orders for purely political reasons, but you might also consider expressing just a wee bit of concern about Presidential aides intentionally causing the issuance of executive orders that are designed to cause chaos, for political reasons. The order in question intentionally and unnecessarily invited disruption. Bannon knew exactly what he was doing. Are you concerned about that?

  11. Donald J. Trump ‏@realDonaldTrump 40m40 minutes ago

    “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
    Not a good idea to attack the judiciary in my opinion. It could very well unite them.

      1. That statement of Trump has the reek of truth to me. A politically motivated judge can write out some gobbledygook to support anything he wishes to do, and the average nincompoop won’t know any better. People who understand the law will know better, even if they do not wish to admit it,

        Squeeky Fromm
        Girl Reporter

        1. Joe Scarborough ‏@JoeNBC 14m14 minutes ago

          “If the White House wants to declare war on judicial independence, they will be crushed. This is a strategy that would lead to impeachment.”
          That statement was made by a middle of the road republican and not some leftist.

          1. Scarborough is a Republican on the payroll of MSDNC. It’s a fan dance with him. He knows the side on which his bread is buttered.

            What impresses you about Ross Douthat is that he’s in a structurally similar situation but engages in no fan dance.

        2. There is a difference between challenging the decision and making an ad hominem on the judge.

  12. Wouldn’t put it beyond this politicized DOJ to try and tank the appeal. Trump has promised an emergency appeal but he can only direct it not do it.

    1. That was my first thought when the Idiot Yates pulled her stunt. I was thanking God that she didn’t stay and try to sabotage the whole thing. She would have been lauded, and legal ethics be damned. I did not say that because I did not wish to give them any ideas.

      Squeeky Fromm
      Girl Reporter

        1. Granny, you look only through the lens of an Uber Leftist with tunnel vision. I would give you facts but you have zero interest in facts – only liberal fantasy. Do you remember Obama saying, “I won”? or that “elections have consequences”? Obama was right!

  13. Hallelujah! The incompetence of this Trump crew might save us from a dictatorship. This crew can’t shoot straight…, there or anywhere………

    1. This isn’t the Trump crew blundering. It’s the dictatorship of the Deep State letting the mask slip.

      You leftists are amazing. You claim to not want a dictatorship, yet when the unelected bureaucracy decides that screw the Constitution all executive authority is vested in it, and not the elected head of the executive branch, you cheer on you unaccountable overlords.

      Why do you hate the Constitution and our system of representative government, anon?

      1. Let’s hope the judiciary continues to provide a check on any and every would be dictatorship. The Judge is a conservative Bush appointee that wants to uphold the constitution.

        1. Our Constitution guarantees us a system of representative government. Not government by appointees and unelected bureaucrats.

          Why do you hate representative democracy, Granny?

          1. ” It is the supreme law of the land, which means that no other law can alter its provisions. The Constitution first three articles created three co-equal branches of government: the legislative (Congress), executive (headed by the President), and judicial (Supreme Court and lower federal courts).”

            1. More hogwash from you. You start from the position that anything Trump does is wrong, and then flail about trying to justify your personal belief system. Like the Washington judge who chose to not write a solid legal opinion.

              Squeeky Fromm
              Girl Reporter

              1. Not true….The appointment of General Mattis was a good one. He seems sane. Hope he stays.:)

              2. Maybe his Goldman crew will turn out to be the best thing that happened to the American worker. They have not be in the past but maybe the swamp drainer will have better luck.

        2. Granny,

          Pray tell, what sections of the Constitution is the judge upholding? Did you have a problem with Obama calling a halt on immigration during his Presidency? Did you shout from the rooftops about that? The list of countries if from Congress and Obama —

          As to Judge Robart – Are you assuming he is conservative because a moderate Republican nominated him to the court? That is shaky logic. There are many judges on benches whose opinions do not match those of the President who selected them. Take Earl Warren. That said, a judges opinions should be based on 1) the law being sited and 2) the Constitution. Was the act in question legit based on the law and is the law Constitutional. Party should play no part in the decision. What the judge thinks the “moral” thing to do whether there is law to back him or not, should not play a role. We have had too much opining about doing what is right/fair. That is NOT the role of the judge. The judge decides if the act was legal according to our laws and the Constitution —- not that is was or was not moral based on his moral code. If Congress does not agree, they can change the law or enact a new one.


      2. Remember the glee when Obama had a phone and a pen? Blowing off Hillary Clinton’s actions, such as lying and erasing her personal server while under subpoena as everybody does it?

        And I somehow think that they would suddenly no longer want SC Justices treating the Constitution as a living document if it was filled with conservatives. If the Constitution is malleable by a mere 9 people, then its interpretation can completely change based on the personal politics of the judges.

        That would be unfortunate. And this is also why an Originalist justice is safer for our republic, regardless of his or her personal politics.

        Our balance of powers, which Obama eroded, protects us from a dictatorship, as well as our military’s vow to defend the Constitution against all enemies foreign and domestic.

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