US Court Grills Trump Lawyer Over Travel Ban

The hour-long hearing in the appeals court was the most significant legal battle yet over Trump’s ban and the judges said they would try to deliver a ruling as soon as possible
Protesters hold signs outside the appeals court in San Francisco on Feb. 7.Protesters hold signs outside the appeals court in San Francisco on Feb. 7.

A lawyer seeking to reinstate Donald Trump’s travel ban was grilled by a panel of three judges on Tuesday, facing questions over the president’s inflammatory campaign promise to close America’s borders to Muslims.

August Flentje, of the Department of Justice, was put on the spot over why seven Muslim-majority countries had been targeted in Trump’s executive order, as well as past statements made by the president, the Guardian reported.

The hour-long hearing before the San Francisco-based ninth circuit court of appeals was the most significant legal battle yet over the ban. The judges said they would try to deliver a ruling as soon as possible but gave no indication of when.

Flentje, reportedly called up for the hearing at short notice, asked the judges for a stay on the temporary restraining order placed on Trump’s travel ban by district court judge, James Robart, last week.

During a hearing conducted by telephone between various locations, Flentje described the ban as putting a “temporary pause” on travelers from countries that “pose special risk”. He said the seven countries targeted had “significant terrorist presence” or were “safe havens for terrorism”.

He said Trump’s actions were “plainly constitutional”.

Flentje argued that the district court restraining order was too broad and “really needs to be narrowed”.

Judge Michelle Friedland asked, “Are you arguing then that the president’s decision in the regard is unreviewable?”

Flentje replied, “Yes, there are obviously constitutional limitations.”

But Judge William Canby pointed out that people from the seven countries already could not come into the country without a visa and were subject to “the usual investigations”. 

How many of these people had committed terrorist attacks in the US, he wondered, before pointing out it was none.

Flentje pointed to Congress’s determination that they were “countries of concern”, an argument that Judge Richard Clifton dismissed as “pretty abstract”.

Trying to regain ground, the lawyer said, “Well, I was just about to at least mention a few examples. There have been a number of people from Somalia connected to al-Shabaab.”

Friedland, who was appointed by Barack Obama, interjected: “Is that in the record? Can you point us to what, where in the record you are referring?”

Flentje admitted: “It is not in the record.”

The panel of judges continued to hammer away at the government lawyer, who sometimes left long pauses before replying. He conceded that some elements of the executive order might be “problematic”.

Canby, an appointee of Jimmy Carter, pondered: “Could the president simply say in the order, we’re not going to let any Muslims in?”

Flentje said, “That’s not what the order does.”

But Canby pressed, “Could he do that? Would anyone be able to challenge that? It’s a hypothetical point.”

Clifton, an appointee of George W Bush, added, “If the order said Muslims cannot be admitted, would anyone have standing to challenge that?”

Flentje repeatedly insisted that this is not what the order says, stressing that “this is a far cry from that situation”.

But later in the hearing one of Trump’s most divisive campaign promises–a “total and complete shutdown on Muslims entering the United States”–reared its head. 

Washington state and Minnesota, which won the restraining order against the ban, have argued that the court must take note of Trump’s rhetoric.

Clifton asked Flentje if he denied that the Republican candidate had made those statements about a Muslim ban.

Flentje protested, “It is extraordinary to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here. That is some very troubling second guessing.”

Noah Purcell, Washington State’s solicitor general who argued the case on behalf of his own state and Minnesota last week, argued that the court should “look behind” the executive order for the motivation.

Purcell said it amounted to discrimination on religious grounds, to which Clifton said the seven countries made up a minority of Muslims worldwide. “My quick penciling suggests it’s something less than 15%,” he said.

“I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected, and where the concern for terrorism from radical sects is hard to deny.”

Whatever the court eventually decides, either side could ask the supreme court to intervene, raising the prospect of a long and drawn-out legal battle.


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