Ninth Circuit Rules Against Trump . . . Using Trump As Main Witness Against Himself

donald_trump_president-elect_portrait_croppedninth-circuit-logoIt is the presidential version of death by cop.  Recently, I wrote a column on how Trump had become a witness against himself by, again, tweeting highly damaging observations about pending litigation and even contradicting the statements of his own legal team in the immigration order litigation.  As predicted, the United States Court of Appeals for the Ninth Circuit not only ruled against his Administration but relied on his damaging recent tweet to seal the deal.  The lack of message discipline extended to Trump friends this week after his friend, Newsmax CEO Chris Ruddy, said Trump was considering firing Mueller: “I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option. I think it’s pretty clear by what one of his lawyers said on television recently.”   The statement sent a chill throughout Congress.  Such a move would not only push Congress to pass a renewal of the Independent Counsel Act but magnify allegations of obstruction.

I thought that the Ninth Circuit opinion was very interesting and well written. In the end, however, I thought that the Court had to work too hard to find a way to rule against Trump, particularly in drawing the distinction between dangerous countries and individuals under its nationality discrimination analysis.  The coup de grâce however was Trump’s own words contradicting the arguments of his own lawyers.  The court noted “Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban.” and quoted  one of Trump’s tweets from June 5, 2017: “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!”

That did not stop Trump from again tweeting about the case this morning as coming at a “dangerous time.”  The continuing tweets (against the public advice of even GOP members) so a disconnect from any rationale approach to this litigation.  Trump has repeatedly undermined his own case with these comments.

The Ninth Circuit opinion broadens the legal foundation for the decisions on appeal.  This is join the Fourth Circuit opinion before the Court and could be taken up with it.  As I noted earlier, the irony is that the administration had finally assembled an excellent legal team, and they are finally before the Supreme Court where they could expect greater support for upholding Mandel. That is precisely the time that Trump chose to attack his legal team and their arguments. In the end, the Supreme Court could (and should) ignore the president’s tweets, but it is increasingly hard when he is drowning out the voices of his own counsel.

93 thoughts on “Ninth Circuit Rules Against Trump . . . Using Trump As Main Witness Against Himself”

    1. 6/12/17

      Nearly 20,000 Jews protest against Israel and Zionism

      Anti-Zionist Hasidic Jews Shake the Room at Brooklyn’s Barclays Center

      “The rally aimed to show the Israeli government that the anti-Zionist community in the United States supports its religious kinsmen in the Holy Land who resist serving in the Israel Defense Forces, said Rabbi David Niederman, who runs the Central Rabbinical Congress.”

  1. Just let all the terrorists into this country. No holds. No barriers. No Walls. Then deal with them.

    I will move to Ash Grove, MO and hope for a chicken in every pot.

  2. Petard refers to a small explosive in a box. See the Oxford English Dictionary.

  3. @ Brooklin Bridge, June 13, 2017 at 1:25 pm
    “Finally, my vote is for Trump hoisted himself on his own petard. It is far more descriptive than, he shot himself in the foot since Trump’s tweets have that element of being Trump’s own signature little bursts (to put it politely), though both phrases covey the general meaning.”

    Only someone from Brooklyn could have the chutzpah to improve upon Shakespeare. 🙂

    Another reason the foot-shooting metaphor seems apropos is that it also resonates with Trump’s seemingly irrepressible urge to shoot from the lip, resulting in continual damage to his political footing.

    If Trump can’t bring himself around to heeding Lindsey Graham’s advice, someone should suggest that he add to his clothing line some steel-toed wingtips and take the first ten pairs.

  4. @ Roscoe P. Coltrane, June 13, 2017 at 11:12 am

    “Good suggestion and I stand corrected.
    “Thanks for the reply.
    “BTW, loved you in the Geico commercial.”

    Thanks. We re-shot that commercial 22 times trying to get it right and were going for 23, but two of the other actors threatened to kill themselves.

  5. If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law … — Thomas Jefferson Letter to Judge Spencer Roane, Nov. 1819

    “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. ….” Thomas Jefferson
    — Letter to Mr. Jarvis, Sept, 1820

    1. Article 2, Section 4

      The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

  6. Themis, Goddess of Justice

    “A common representation of Justice is a blind-folded woman holding a set of scales. The origin of the Goddess of Justice goes back to antiquity. She was referred to as Ma’at by the ancient Egyptians and was often depicted carrying a sword with an ostrich feather in her hair (but no scales) to symbolize truth and justice. The term magistrate is derived from Ma’at because she assisted Osiris in the judgment of the dead by weighing their hearts.”

    Justice shall be blind.

    Members of the judicial branch shall be objective or “blind.”

    This case is against EO 13769 not tweets or peripheral debate.

    The law and precedent are clearly on Trump’s side.

    The President has full legal and constitutional authority to effect security regarding immigration and travel.

    Political opposition illicitly exists in the courts involved.

    Trump should not tweet, fellow republicans give good advice and

    none of it bears in an objective or blindfolded court of law.

  7. Article 2, Section 4

    The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

    No member of the judicial branch possesses any authority to legislate or modify legislation

    or to take action for ideological or political purposes.

    Legislation that is problematic must be remanded to the legislative branch.

    It is clear, that the 9th Circuit and lower court judges have acted on personal political motivations.

    The judicial branch has criminally engaged in usurpation of the power of the legislative branch.

    The 9th Circus Court, the lower level judges et al. must be impeached for crimes of high office.

    The judicial branch must be disabused of its notion that it is an Imperial Judiciary.

    Article 2, Section 4 must be enhanced and accelerated to effect swift justice.

    The duly elected President Trump is clearly within the parameters of the Constitution, law

    and the precedents of the immigration restrictions imposed by Presidents Hoover,

    Truman and Eisenhower.

  8. JT says…”In the end, the Supreme Court could (and should) ignore the president’s tweets”

    I’m sorry, I completely 100% disagree. Do you also tell the jury in a case, ignore that the defendant stood up in front of you and said I did it?

    He is the person that will implement said policy. Take him at his word. Words have meaning.

    1. A compelling analogy is the fact that the judge on the Bill Cosby trial and “legal precedent” ignored the testimony, evidence and “preponderance of evidence” of 39 other female victims. It is manipulation, corruption and a crime by the Imperial Judiciary to keep qualified salient evidence out of the perception of a jury. Given that there is NO evidence of any violation, the same crime of manipulation of evidence by the Imperial Judiciary, “deep state,” ruling class elite, collectivist, one-world government globalists is being perpetrated against the duly elected President. In deed, the preceding administration was the most corrupt in American history given the explicit and pervasive abuse of power, corruption and profiteering, and no serious investigation was undertaken and no Special Counsel was appointed; while Hillary “Bleach Bit” Clinton was preposterously found to have had no “intent.”

  9. If the 9th circuit relies on out f court statements by Trump in ruling on his EO, can his legal team rely on out of court statements by the Judges in order to show bias and malice? Might be time to examine their emails , tweets and phone conversations.

        1. Should have started sooner. I think if you make bold statements as a judge, the litigants have the right to call you on it and seek your removal. That’s the reason I opposed it when Ginsberg and Scalia did it. I also think if Mueller is packing his team with anti-Trumpites, he should be called on it, too.

          1. ‘Should have started sooner’ . that’s for certain. I could be wrong but his legal team seems to be a step or two behind their opposition both in knowledge and attitude.

            1. He’d better make the public case first that Mueller has a thumb on the scale with these appointments to his team that can’t be trusted for impartiality in the investigation. I’d investigate the investigators and use their own statements/writings/socialmedia to bolster a case for skewed judgment or outright partisanship. Turnabout is fair play.

        1. Not, really because the tweets are considered to b official policy statements per the wh and not just some random event.

  10. The Ninth Circus consists of sleazy grotesque liars and dirtbags. Any “opinion” they have is going to reflect their Leftist bias. Trump doesn’t stand a chance a chance no matter what if that is the kind of “court” he faces, nor does ANYBODY who is seaking justice.

    1. You’re not getting far with that argument, Ralph. You shouldn’t presume malice where bona fide disagreement exists. I think they are over the top, too, but I don’t question their good faith. At least, not yet.

      1. “Good faith?” Surely, you jest, Mespo. “Good faith” essentially means honesty and a sincere intention to deal fairly with others. Such a concept is the very ANTITHESIS of the Ninth Circus.

        You really should check out the Robing Room website and look up what attorneys have to say about the “judges” on the Ninth Circus. But I can summarize the overall concept of what they have to say. They basically conclude that the Ninth Circus judges START with which side they want to favor and then back into whatever law or facts support that side. And if the law and the facts don’t support their side, then they merely misinterpret the law and distort the facts as necessary to get where they want to get.

  11. The Ninth Circuit was going to rule against Trump no matter what. But the court’s citing of his Twitter comments should make a more interesting case for SCOTUS. They can choose to ignore the lower court’s reliance on Twitter dispatches as evidence of Presidential policy-making, or they can rule squarely on the issue of whether the law is expressed by the relevant legal document, or also includes Twitter missives, campaign jargon, interview statements, pillow talk, or any other off-hand comments or asides.

    1. I find that when a court relies on evidence not tested in a courtroom for it’s rulings its judgment is inherently suspect. Tweets are not evidence, campaign statements are not evidence, and the judge’s political proclivities is most assuredly not evidence. These Circuits want to be executives and their ignorance on national security jeopardizes us all. They need to stay in their own lane and interpret law not make policy. It’s blood on their hands when one of these open door migrants from a suspect country mass kills Americans. Let’s see if their pious adherence to their own political agenda matters to Americans then.

      1. Based on that Saudi immigrants pose a far greater threat, and it’s not on the list.

      2. I disagree that tweets and campaign speeches are not evidence. This is not a criminal trial where rules of evidence are imposed. This is the President of the United States giving an opinion on how he thinks the country should be run. If I spout some policy opinion it is meaningless. I have no authority to implement said policy. When the President spouts some statement about policy (either by tweet, campaign speech, press conference, etc) it has meaning. He is in a position to implement said policy. So anything he says can and should be used against (or for) him.

          1. mespo – we got into the Korean War because somebody forgot to mention that we would protect South Korea. Suddenly, it is filled with armed North Koreans. 🙂 Trump has to learn that what he says counts.

                1. Yes BUT he’s still in the running for the Kennedy Assassination and Benjamin Harrison’s “mysterious” and untimely death from pneumonia less than three weeks into the term.

                  1. mespo – speaking of the Kennedy assassination, it is time to release the FBI data on the assassination. If Trump does that every conspiracy nut in the world will be going thru those and it will take the heat off him.

                2. Well, we can’t blame Trump for the assassination of JFK; we already know that Ted Cruz’s father did that (if we are to believe Trump’s campaign rhetoric, hahaha). 🙉

  12. @ Roscoe P. Coltrane, June 13, 2017 at 8:29 am

    “Hoisted please, not falling.”

    “Hoist,” please, not “hoisted.” 🙂

    If I may suggest it, an even more appropriate metaphor than “hoist with his own petard” for Trump’s impulsive behavior regarding the Tweet in question would be that he “shot himself in the foot,” a non-fatal, but definitely counter-productive move. 🙂

    1. Petard: (péter, to break wind – fart) -Wikipedia:

      Pétard comes from the Middle French péter, to break wind, from the root pet, expulsion of intestinal gas, derived from the Latin peditus, past participle of pedere, to break wind. In modern French, a pétard is a firecracker (and it is the basis for the word for firecracker in several other European languages).

      To hoist (to raise)
      If he isn’t careful with that candle, he will hoist himself on his own petard.
      No sooner said than done, he hoisted himself on his own petard.

      Usually used as a very colorful way of saying something backfired.

      What’s wrong with hoisted? It’s the past participle of to hoist. It is grammatically correct used in the phrase, he hoisted himself when the act of hoisting is in the past.

      Finally, my vote is for Trump hoisted himself on his own petard. It is far more descriptive than, he shot himself in the foot since Trump’s tweets have that element of being Trump’s own signature little bursts (to put it politely), though both phrases covey the general meaning.

        1. Jay S – as used in the expression by Shakespeare, to be hoist on one’s own petard is to be strung up with your own hand grenade, with the pin out.

  13. A clerk on the 9th Circuit emailed that a judge on the Court held up the ugly photo of Trump and then the rest of the judges said “Nuff Said”.

  14. I think the analogy to death by cop is a little off the mark.
    I think it’s referred to as “Suicide by Cop.”
    I think Falling on his own Twitter Petard would be more apropos.

    1. From Wikipedia: “Shakespeare’s phrase, ‘hoist with his own petard,’ is an idiom that means ‘to be harmed by one’s own plan to harm someone else’ or ‘to fall into one’s own trap,’ implying that one could be lifted (blown) upward by one’s own bomb, or in other words, be foiled by one’s own plan.”

      I hadn’t heard this phrase before. Yes, it’s apropos. Thanks.

  15. I don’t get legal arguments that essentially say one presidential order to protect American citizens could be different from that same order from another president, based upon individual motives.

    This makes no sense in terms of the power of the presidency.

  16. “it is increasingly hard when he is drowning out the voices of his own counsel.”

    That Trump’s tweets make it difficult is inconsequential. The only words that need to be looked at are within the 4 corners of the travel ban document in relation to the Constitution and existing laws.

    Unfortunately, some on the Supreme Court will think their experiences are more important than the actual document (…and perhaps even the Constitution). Fortunately I believe that group constitutes a minority.

    1. Using your theory, could your wife write a note saying she will never cheat on you, then cheat on you, numerous times but then point back to the note as evidence that she won’t cheat?

      I am not trolling or looking for a fight, just a meaningful conversation.

      Thank you

      1. Rock, your suggestion wasn’t a contract. Unlike you or I the President has Constitutional powers to act in certain fashions. That is why we elect our leaders.

  17. Liars typically make the best witnesses against themselves. When you have the ultimate liar in such a place, well???

    1. Using what appears to be a very loose definition of the word liar you have convicted every President of the United States.

      1. Agreed, every President and for that matter every politician, and leader, religious, corporate, or otherwise can be and is caught in lies. Leaders and representatives can be accused of lying when what they promised and tried to do didn’t happen; just as they would be called honest people of their word if it did turn out as they said, regardless of the causes for success or failure. Leaders and representatives can be seen lying to promote larger agendas, the white and not so white lie.

        However, never before has some one come along that lies without reason, in a knee jerk manner, and primarily for self gratification when it is not necessary. When you win the Presidency, there should be no need to begin by lying. The lying comes later when plans go astray, etc. There is something seriously wrong with Trump and that can be seen in his prolific lying. There are, accumulating, more layers of incompetence. The man is out of his element. He is nothing more than a sleazy real estate developer that was born to wealth and privilege, a spoiled brat of the extreme sort. Read his books.

        1. That sounds more like an opinion than factual. Perhaps you don’t find a difference between puffing and lying. I don’t want to politicize the “lying” of Presidents so I will let Gruber do that instead. Remember what he said about the ACA and how they had to lie to convince the American public…?

          If one actual reads Trump’s books one could be impressed. I remember NYC when it was in near bankruptcy. Donald Trump was one of the few developers at the time that was willing to commit his energies and money to investing in Manhattan. Remember the Commodore Hotel that was going bankrupt and closing down? Thanks to Trump it is now the Hyatt that changed the look of the 42nd st. area and helped spur on further development. Remember what the West Side in the 30’s looked like? Trump was instrumental in creating the Javits Center. That is just the beginnings of Trump’s real estate involvments.

          It is apparent you don’t like real estate developers so you find a way to label them, sleazy is your word of choice followed by spoiled brat. Character assassination seems to be the favorite choice of debate among those that have difficulty garnering the facts.

          1. The Commodore Hotel deal with his first really big con, and New Yorkers just got done paying for it. The other projects ahead of the hotel that revitalized the area didn’t need, or get, the millions that Trump managed to con out of the city.

            1. Richard, what con are you talking about. NYC was near bankrupt and developers weren’t building. The area surrounding the Commodore wasn’t inviting and was going downhill.The Commodore was going bankrupt as was its holding company. The Commodore was losing millions and their losses dramatically increased.

              The Hyatt a prestigious hotel chain took a leap of faith and a new more modern Hyatt was built that helped modernize the area. The Hyatt won, Trump won and the people of the city of NY won. What is wrong with that?

              Should the ability to profit be made illegal?

              1. Before they even started work knocking the Commodore down, they had started work on the Chrysler Building renovation and multiple other major projects in the area, all without the huge tax break given to the Trump project. Trump got in on the project by misrepresenting his rights to the property (he claimed to have an option on it, but did not have the funding in place to pay for the option). Having the mayor owe you can do wonders for your ability to “deal.”

                1. Really Richard? His work to develop the Commodore preceded the rennovation of the Chrysler Building. Remember, it took considerable time to put the deal together, get financing and get approval from the city so the day he started was way ahead of most developers. How come no one else was ready and willing to develop the Commodore Hotel?

                  By the way it appears your sources don’t have all the facts straight. The Commodore wasn’t knocked down. A new skin was put on top of the old building. The Mayor at the time didn’t help Trump at all and didn’t add his approval until a new mayor was coming on board. Both the city and Trump bargained so that each could get the best deal they could. Trump needed approval by the city in order to build. The people of NYC benefited substantially when this deal was concluded. Obviously you aren’t very familiar with what was happening in Manhattan in the late seventies.

                  By the way Mother Jones isn’t a good source for unbiased information.

          2. It is fact that Trump took advantage of hundreds of millions in incentives from the City of New York. He took taxpayer money and used it to pander to the mega wealthy. Trump’s dad made his mark building apartments for the average joe (regardless of the racial bias). Trump, and his son in law’s company use tax breaks earmarked for low income housing to advance their empires that are wholly focused on the mega wealthy. Kushner is presently building a luxury high-rise using funds earmarked for low income housing. You can say great cuz he’s smart. Lots of crooks are smart. If you can’t see this, then you need to read his books-drivel that they are-and study a history of his developments. And, regardless of whether or not Trump has to or not, why doesn’t he release his tax records? His past tax records illustrate a history of tax incentives, hundreds of millions of city money invested, and other assistance. The result is a City of New York where the average joe cannot afford to live. It’s all part of the intricate fabric of life and exists in all the great cities. They simply don’t elect their oligarchs to lead them, except in Russia. Get the similarity?

            1. Issac, the city of NY provides all sorts of tax breaks and benefits to developers and anyone else that can and wishes to build what is approved by the city. In part that is how the city makes money. They tax these buildings. Not only that, but the people living in the city derive benefits from these agreements along with people that live in subsidized housing.

              If you ever walk through Manhattan, take note of the many very small parks that exist and are open to everyone while being maintained by the adjoining building. Take note of some of the open areas within some buildings and all sorts of things that would not exist, but for the cooperation between the developers and the city. Developers want to build high so the city makes deals with them to provide common space for all citizens whether within the building or outside of the building. The architecture can also be used to promote approval.

              Perhaps you would prefer Manhattan to not have these parks and for all buildings to be drab rectangles with equal height. That is what we get in the world some people want to live in. Think of Detroit one of the richest if not the richest city in the US at one time.

              Remember Issac NYC almost went bankrupt funding socialist policy. One of the major causes of such high pricing in NYC was rent control. Building ceased, rentals turned condo and housing units became scarce. Scarcity boosts prices. If you recall when John Lindsay was Mayor he went after the landlords and many were unable to pay their taxes and ceased doing so. In one year 100,000 units were turned back to the City of NY without recouping any of the capital they put into the purchase of the building. NYC got these units for free, but they couldn’t manage them because one needs a bit of talent to manage building efficiently so the city turned many of the buildings back to the original owners.

              Just because one may dislike another’s politics doesn’t make everything that individual did bad. Proveable facts are difficult to come by so all too many people resort to name calling and demeaning those they don’t like. Is that what we are seeing here?

        2. You are absolutely right. Trump is an incompetent buffoon and a national embarrassment.

          1. Wild, aside from name calling are you able to bring any intelligent and useful information to the table?

            1. I see you’re smart enough not to try and defend the indefensible, our loutish and depraved President, and I give you full credit for that.

    2. “In the end, the Supreme Court could (and should) ignore the president’s tweets, . . .” Aren’t we supposed to take the president at his word? It seems to me Mr. Turley’s comment would have us shrug our shoulders and side with Paul Ryan’s “he’s just new” excuse.

      The 9th Circuit (correctly in my opinion) required more than rhetoric by tweet to make a showing of a national security basis for Trump’s second EO on immigration. The bottom line is that just because the president says it’s so doesn’t mean it is to a court of law. Taking Trump’s word whether “he’s just new” or not isn’t justifiable.

    3. Trump is a liar, and a fool as well. Our man-child President who cannot desist from sabotaging himself with his moronic tweets.

      1. Wild, you have said virtually the same thing several times. Are you unable to add substance to your name calling?

        1. Trumpkin, did I mention that Trump is also a depraved lunatic who lusts after his own daughter?

          1. Thank you for the mirror you have shown upon yourself. Very revealing, not something one is generally proud of.

            1. Trumpkin, grab a bucket and hasten to the White House dumpster fire. Quickly now!

    4. In US style democracy there is no protection against the public electing an incompetent individual to the Presidency or Congress or any other elected office. While literacy tests for voting have been outlawed, they should be required before someone is allowed to run for public office.

      1. Doglover, the US is a representative republic that votes in a democratic fashion and we accept who the people vote for. Sometimes they aren’t the best and some have even been criminals. This is determined by the federal constitution along with the constitutions of the states. Obviously the present President was found superior to the other candidate and therefore became President. Some agree with this President and some disagree.

        You have an idea. Pass a constitutional amendment. Until then we have to live within the law.

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