Category: Politics

Trump and The Courts: Presidential Attacks On The Courts Have A Long History

donald_trump_president-elect_portrait_croppedSupreme CourtBelow is my column in USA Today on the continuing controversy over President Trump’s attack on judges who have ruled against his executive orders.  I have been critical of Trump’s attacks on the media and the courts, which undermine not just those critical institutions but the White House itself.  As discussed below, presidents have learned that attacking the courts tend to diminish their own credibility over time.  Having said that, Trump is not as much as a departure from other presidents as some have made out.  Indeed, public discord between the executive and judicial branches has a long history in our country.  Of course that is no license to continue a bad practice and most modern presidents have avoided direct personal attacks on judges and justices.  Most importantly, the criticism of the judges in the Ninth Circuit in my view are unwarranted and unhelpful.  The executive order on immigration was, as I have previously stated, poorly drafted, poorly executed and poorly defended.  The law favored the President and still does.  Yet, through remarkably causal drafting, the Administration gave judges a target rich environment in the first executive order. While I disagree with fundamental parts of these opinions, the result had more to do with the sloppy drafting of the order than any bias of the judges.

Here is the column.

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Law Professors File Ethics Complaint Against Kellyanne Conway

A group of 15 ethics law professors from around the country has filed bar charges against  White House counselor Kellyanne Conway.  For full disclosure, Conway is one of my former students at  George Washington University Law School (she graduated in 1995).   The letter from 15 professors alleged ethical violations of government rules as well as  “conduct involving dishonesty, fraud, deceit or misrepresentation.”  Most of the allegations in the letter are, in my view, without merit and seem overtly political.  The one issue that has already been raised in Congress and has a legal foundation is the alleged endorsement of Conway of the product line of Ivanka Trump.  That is a technical violation of federal rules, but the question is whether it was a venial rather than mortal sin.  The “violation” was the result of a side comment by Conway on television criticizing the decision of Nordstrom to drop the line.  The White House Counsel’s office let it be known that Conway had been “counseled” over the infraction.  However, ethics charges should not be a form of politics by other means and, with all due respect to these accomplished academics, this letter strikes me as raising largely political objections to Conway’s work as a spokesperson for the Administration.

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Congressman Moves To Sue House Over Removal Of Controversial Painting Depicting Police As Pigs

Rep. Cedric Richmond (D-La.), chairman of the Congressional Black Caucus, said “We may just have to kick somebody’s ass and stop them.  Then the architect stepped in and barred the hanging of the picture.  

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WA Supreme Court Rules Against Florist In Gay Marriage Discrimination Case

By Darren Smith, Weekend Contributor

Baronelle Stutzman
Baronelle Stutzman

What so far has proven to be a long ordeal for two men originally wanting only to be provided with a floral arrangement for this upcoming wedding, and also for florist Barronelle Stutzman who asserts her right to religious freedom by denying this service, has now come to another milestone in Washington.

A unanimous ruling by the Washington Supreme Court, the court denied Stutzman and her business, Arlene’s Flowers, INC’s assertions, ruling:

“…Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation.” and therefore held that “the conduct for which Stutzman was cited and fined in this case-refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding-constitutes sexual orientation discrimination under the WLAD.” (Washington Law Against Discrimination)

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Wisconsin Students Demand Free Tuition and No Standardized Tests for Black Students

imagesStudents at the University of Wisconsin-Madison have demanded that African-American students be given free tuition and housing because blacks were denied access to college educations for much of our history.  They also opposed the use of standardized test scores as a barrier to black students.  

Trump Says Administration Will Issue New Immigration Order Next Week

donald_trump_president-elect_portrait_cropped200px-US-CourtOfAppeals-9thCircuit-Seal.svgPresident Trump said today that  he will sign a new immigration executive order next week and that he  would appeal the 9th Circuit Court’s ruling against his travel ban.  He further called the Ninth Circuit a court “in chaos” and “turmoil.”  I do not see the chaos or the turmoil on the Ninth Circuit, which is the largest circuit in the country.  One can certainly disagree with the decision on the executive order, but the panel decision was a good-faith decision of three judges who unanimously ruled against the order on the effort to stay the lower court’s temporary restraining order (TRO). Update: there appears another disconnect between the White House and the DOJ. In today’s filing the DOJ requested that the Nunth Circuit vacate the prior order because the new order will rescind and replace the old order.

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Federal Judge Grants Preliminary Injunction of Executive Order In Virginia

donald_trump_president-elect_portrait_croppedIt appears that the problem with the Internet in Palau resulted in the deletion of the original post on the decision in Virginia.  I did not want to delete any discussion so I am keeping this post.  I am in Guam now with better Internet access.  Virginia federal district court Judge Leonie Brinkema granted a preliminary injunction which requires a higher showing for the challengers. In that sense, this is an obvious victory but it could also be an opportunity for the Trump Administration.  I believe that the Brinkema decision might be the better option for the Administration to appeal given its focus on religious discrimination and its reliance on campaign statements and the bizarre statements of Rudy Giuliani.

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Lessons from State of Washington v. Trump

By Mike Appleton, Weekend Contributor

“A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions.”

-Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613 (1952)

The decision of the Ninth Circuit Court of Appeals earlier this week upholding the temporary restraining order against enforcement of Executive Order 13769 produced immediate outrage in the Trump Administration. The President himself characterized the ruling as “disgraceful” and claimed that any subsequent act of terror on our shores would be laid squarely at the feet of the judiciary. Mr. Trump has been variously advised to take the matter to the Supreme Court or ignore the lower court orders entirely. In my view, the wisest option is to return to the drawing board, an idea that is apparently also under consideration.

The anger over the Ninth Circuit’s ruling is misplaced. It is neither warranted by the decision itself nor by the perceived threat to presidential power. The court did not rule on the merits of the plaintiffs’ claims and its continuation of the TRO until completion of an evidentiary hearing in the trial court is not fairly predictive of the final outcome. Moreover, the Administration has not advanced any substantive argument, either in court filings or in public statements, to support the notion that temporarily maintaining current immigration policy creates serious security risks. Indeed, we are still waiting for an explanation of what the phrase “extreme vetting” even means.

Instead of railing against the decision and engaging in personal attacks against judges, the President would be well-advised to read the opinion carefully. It contains several useful lessons for the future of his presidency.

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Fairfax Mayor Reportedly Close To Pleading Guilty In Meth-for-Sex Case

silverthornemugWe have been discussing lawyers and professors nailed as drug dealers.  Now close to my home, the former mayor of Fairfax City will enter a plea in a meth-for-sex prosecution.  R. Scott Silverthorne, 51, is reportedly ready to plead guilty after allegedly offering an undercover officer methamphetamine in exchange for an orgy at a Tysons Corner hotel.  Silverthorne told The Washington Post that 2015  was  a “terrible year” due to political challenges.  2017 has the makings of a much much worse year.

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Woman Flogged In Indonesia For Being Present

125px-Flag_of_Indonesia.svg85px-Coat_of_Arms_of_Indonesia_Garuda_Pancasila.svg
We have yet another example of the brutality of Islamic Sharia law from Indonesia where a woman was savagely flogged publicly for spending time with a man who was not her husband, including an allegation of sex outside of marriage.  The flogging occurred in Banda Aceh on the Island of Sumatra.

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Ninth Circuit Deliberates Appeal Over Trump Executive Order

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1

I previously discussed my surprise over the clumsy performance of the Justice Department in defending the Trump executive order on immigration.  Those concerns were magnified after the oral argument before the Ninth Circuit that was made available on YouTube.  The performance by August Flentje, special counsel to the assistant U.S. attorney general, was surprisingly lackluster and seemingly ill-prepared.  The shaky start that I described earlier seems now to be seismic as the Justice Department stumbles toward a ruling that can come as early as today.  As Flentje observed during his uninspired argument “I’m not sure I’m convincing the court.”

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Ninth Circuit Schedules Oral Argument On The Trump Immigration Order

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The government filed its reply on February 6th and followed earlier arguments in favor of an appellate stay of the lower court order of Senior District Court Judge James Robart.  As discussed earlier, a temporary restraining order is very difficult to reverse on an interlocutory appeal.  Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy.  Of course, nothing is “normal” about this controversy in terms of procedure or policy.

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Ninth Circuit Briefing Completed Today For Ruling On Trump Appeal

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The United States Court of Appeals for the Ninth Circuit will have a completed record for its review of the lower court’s stay of the Trump immigration executive order this afternoon. While much has been made of the court declined to issue an immediate stay of the lower court under the earlier emergency motion, the decision was very predictable. The Court instead ordered for an expedited response from the states of Washington and Minnesota. That argument is complete today. What remains is a relatively rare procedural process in seeking to review a temporary restraining order (TRO) before the issuance of a written opinion, let alone a permanent injunction.

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The Superbowl Ad You Will Not Be Seeing Today [Updated]

screen-shot-2017-02-05-at-11-02-32-am84 Lumber is a building materials supply company that is the latest to trigger a Superbowl advertisement  controversy over an ad.  We have previously discussed how groups like PETA often seems to engineer conflicts (and rejections) to get more attention than would have been generated by a commercial itself.  Whatever the motivation, 84 Lumber has garnered massive attention after its commercial “The Journey Begins” was rejected by Fox as too political and divisive.  With some 47 percent of the public supporting the Trump executive order, it is a risky move that the attention could create as much anger as support among potential customers.  Regrettably, I will be on a flight to Guam (which takes off at the time of the kickoff).  I will try to get the game on the flight but I enjoy having a Superbowl party with the kids. We enjoy the commercials often as much as the game.  The company said that it was censored but allowed to run an altered commercial.  Maggie Hardy Magerko, 84 Lumber’s president and owner, is quoted as saying “I still can’t even understand why it was censored. In fact, I’m flabbergasted by that in today’s day and age. It’s not pornographic, it’s not immoral, it’s not racist.”

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Ninth Circuit Rejects Motion For Immediate Reinstatement Of Executive Order But Schedules Expedited Argument For Monday

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The United States Court of Appeals for the Ninth Circuit has declined a demand for an immediate reinstatement of the Executive Order on immigration but has scheduled expedited arguments and filings in the case for Monday.  The decision is not surprising in such a case.  Courts need to hear from the other side in the dispute, particularly when the Washington Attorney General prevailed in the trial court.  Moreover, a temporary restraining order is very difficult to reverse on an interlocutory appeal.  Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy.  Of course, nothing is “normal” about this controversy in terms of procedure or policy.  With a major executive order stayed, the Ninth Circuit is clearly moving with dispatch but deliberation.  The Justice Department team was not helped by President Trump’s tweets casting aspersations on Judge James Robart of Federal District Court in Seattle as a “so called judge.”   Such comments undermine the credibility of the claims. It is less compelling to demand respect for the executive branch if you are viewed as denigrating the judicial branch.  While there is ample reason to question the ruling of Judge Robart, but he is a respected judge who made a good-faith decision on a tough legal question.   He is not a “so-called judge” but a real judge and has the Senate confirmation to prove it.  Having said that, media playing up the “rejection” by the Ninth Circuit are not being entirely accurate.  The Ninth Circuit wants more argument and has not reached the merits.  There is still question whether it will reach the merits on a TRO appeal.  I still believe that President Trump has the advantage legally and we could see this order stayed.  The question is when and how since this remains a temporary restraining order without a written opinion from Judge Robart.

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