We just discussed the move in Hawaii to secure a new restraining order to cover the second Trump executive order. That was the most likely move that we previously discussed. The other option was to seek to extend the existing restraining order to cover the second executive order on the grounds that there was not a substantial change. That is the option that Washington state is taking. Today, Washington state Attorney General Bob Ferguson indicated that he will ask that Judge James Robart’s Feb. 3 ruling be extended on the grounds that the second Executive Order contains the same alleged violations as the first.
Just a day after Sen. Al Franken publicly accused Attorney General Jeff Sessions of perjury, Sen. Sheldon Whitehouse (D-R.I.) went public on CBS with a theory that appears to have been bothering him: “You can imagine a set of circumstances in which the Trump campaign gave him talking points [and] he was a message boy for them.” The purpose, Whitehouse suggested, was for Sessions to convey “Mission accomplished” after meeting with his Russian handlers. It is a curious notion that Sessions was a Manchurian senator but the Russian ambassador still met with him in the presence of staffers on the Hill or in public at the Republican National Convention. If this is a sequel to the Manchurian Candidate, I may have to pass.
Pakistani media is reporting a disturbing series of comments by Islamabad High Court (IHC) Justice Shaukat Aziz Siddiqui who has shown the danger of Sharia law and the erosion of the separation of mosque and state. Justice Siddiqui went on a religious rant recently in denouncing “disrespectful” comments on social media and pledged to treat all such blasphemers as terrorists.
The Trump Administration has issued a new executive order on immigration. As expected, the second order removes some of the most controversial provisions of the first order and tightens the language. Iraq has been dropped from the list of countries subject to the 90 day ban. However, there will be additional security of Iraqi nationals. That would leave Iran, Somalia, Sudan, Yemen, Syria and Libya. The permanent ban on entry of Syrians has been removed. There is still a limit on all refugees to 50,000 — a 50 percent cut. Current VISA holders and permanent residents are exempted. Notably, this travel ban will be implemented on March 16 and the order will be dated to run from the date of the original executive order (which was . Finally, the preferential treatment afforded to religious minorities has been removed.
The new order removes the edges from the rather casual drafting of the first order. As I previously noted, good lawyering rarely changes the outcome of litigation but bad lawyering can. The first order reflects remarkably bad lawyering — if indeed it was drafted primarily by lawyers. Of course, this still distinguishes between people based on their nationality — the core of the challenge of the earlier litigation. Thus, it is likely that this will face new challenges — or attempts to amend earlier complaints. The rollout with the Secretary of State, Homeland Security Security, and the Attorney General shows a significant change in the level of professionalism from the more improvisational effort of the original order. It was a surprisingly sharp learning curve but the A-Team appears to have shown up to defend this order. The new order is below.
With the chorus of calls for an “independent counsel” or “special prosecutor” to investigate the Russian hacking scandal, there has been one element that remains rather ambiguous: what is the specific crime to be investigated? Clearly there is the hacking but that crime is well-known and was committed by Russians who are unlikely to be subject to any real investigation. A special counsel, as opposed to a bipartisan commission, would require the articulation of a crime and the basis for the investigation. I am all in favor of independent investigations of this and other issues. However, if we are going to move beyond a special commission to special counsel we need to have more evidence and a notion of what we are investigating. That may come but we are not there yet. Below is my column in The Hill Newspaper on the subject — and the moral outrage over hacking.
We have previously discussed the shocking rollback of free speech in France in the name of combating hate and intolerant speech. The latest fine was imposed on Jean-Marie Le Pen, the father of French conservative presidential candidate Marine Le Pen. His crime was calling Roma “smelly.” It was an offensive and prejudiced comment but the criminal prosecution of such insults demonstrates the slippery slope that France is now on — a slope that inevitably leaves to greater and greater speech control. This is the ninth time that Le Pen has been prosecuted for the crime of insulting other people or groups.
Media is reporting that President Donald Trump will issue a new executive order on immigration this week but, according to a source this morning, not today. The order is expected to correct glaring problems in the first order. I have said previously that the original order was poorly drafted, poorly executed, and poorly defended. The Administration will have to significantly improve the lawyering behind any new executive order. Indeed, the law still favors the Administration and the disastrous rollout of the first order was the result of astonishingly casual and frankly sloppy work. As I have previously stated, good lawyering does not often materially alter the outcome of litigation but bad lawyering does. This is one such case. With case law favoring the Administration, the improvisational character of the first order created a target rich environment for courts.