The Justice Department Declares War on Attorneys Who Dare to Oppose the Trump Administration

On Friday, the Department of Justice filed an astonishing appeal with the Supreme Court, urging the justices to intervene in the Jane Doe case that seemed to have ended last week. Doe, an undocumented 17-year-old in a federally funded Texas shelter, was denied abortion access by the Trump administration, which argues that it can force undocumented minors to carry unwanted pregnancies to term. On Oct. 24, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Doe must be allowed to terminate her pregnancy, which she did the next day. Now the DOJ is urging the Supreme Court to vacate that decision—and punish the ACLU attorneys who represented Doe.

Make no mistake: With this filing, Attorney General Jeff Sessions’ Justice Department has declared war on attorneys and groups who dare to oppose it in court.

Because Doe obtained her abortion, Friday’s appeal might seem pointless, presenting no live controversy for the justices to adjudicate. But the DOJ has three goals here. First, it wants the Supreme Court to punish the D.C. Circuit for issuing a decision that it believes to be egregiously wrong by wiping the entire ruling off the books. Second, the DOJ wants to eradicate a decision that sets a legal precedent it despises. Doe’s lawsuit was initially brought as part of a class action, and the ACLU will continue to litigate its broader claim against the Trump administration’s absolute bar on abortion access for undocumented minors. As long as the D.C. Circuit’s decision remains on the books, those lawsuits are almost guaranteed to succeed. The Justice Department wants it gone so that it can litigate this issue anew.

Third, and most importantly, Friday’s appeal is a flagrant effort to crucify the individual attorneys who represented Doe, and to terrify likeminded lawyers into acquiescence. The DOJ thus asks the Supreme Court to force Doe’s lawyers to “show cause why disciplinary action should not be taken” against the ACLU—either by the court itself or by state bars—for “material misrepresentations and omissions” designed to thwart an appeal.

In other words, the DOJ is using the full weight of a government agency to threaten professional ruin upon the lawyers who defended Jane Doe’s constitutional right to abortion access.

The DOJ claims that after the D.C. Circuit ruled in Doe’s favor on Oct. 24, government attorneys believed they had until Oct. 26 until Doe got her abortion. Under Texas law, women must obtain “counseling” at least 24 hours before terminating her pregnancy, and this counseling must be performed by the same physician who performs the procedure. Doe had already received this counseling from a Texas doctor when the D.C. Circuit issued its decision. According to the DOJ, ACLU lawyers told the government that this physician would not be working and that Doe would receive another counseling appointment on the morning of October 25, and get the abortion to October 26. Government lawyers asked to be kept informed of the timing of the procedure, and they claim that ACLU lawyers agreed to comply with their request. They also say that the DOJ planned to ask for a stay on Oct. 25—but on that same morning, ACLU attorneys arranged for Doe to visit the doctor who had already counseled her, allowing him to perform the procedure.

Put differently, the government argues that the ACLU owed government lawyers a notification of when Doe’s legal abortion would occur. The end goal here seems to have been to try to continue to block the abortion until it would be illegal to terminate, even though she had secured an unqualified right to do so. (Doe was 16 weeks pregnant by that point; Texas bans abortion after 20 weeks, and the government had already delayed the abortion by a month.) The DOJ also claims that Doe’s lawyers had the responsibility to keep answering their phone calls to update them on her status: “Efforts to reach respondent’s counsel were met with silence, until approximately 10 a.m. EST, when one of her lawyers told the government that Ms. Does had undergone an abortion.”

What really seems to enrage the DOJ, however, is that Doe didn’t attend a second counseling session—which would have been duplicative and wasteful, and caused her yet more needless delay—because the physician who counseled her the first time later agreed to perform the procedure. If ever there were an indicator of the un-distilled bad faith at work here, it’s government lawyers insisting that a non-person with no rights undergo a second round of the same counseling, not for the purposes of medical advice, but so that they would have more time to thwart her choice.

These allegations of wrongdoing are laughably flimsy and outwardly vindictive. Even under the DOJ’s contorted narrative, it’s obvious that the ACLU simply acted efficiently, and the Trump administration is bitter and embarrassed that it lost. The government argues that the ACLU “at least arguably had an obligation to notify the government” that Doe would terminate on Oct. 25—an “incredibly significant development.” But that’s just not how this works. The government had sufficient time to ask the Supreme Court to stay the D.C. Circuit’s decision before Doe terminated. In fact, Texas was already prepared with its own amicus brief backing the DOJ. But the government didn’t act in time. And it’s not the ACLU’s fault that its client secured her constitutional rights while the government dallied in its efforts to exert control of her reproductive capacities. This week-late effort to blame the ACLU for its “arguable” responsibility to ensure that the government could continue to harm their client is not just an effort to save face, but also an attempt to warn attorneys that zealous effectuation of their duties to the clients will now be punished.

The Justice Department’s crusade against the ACLU is especially galling in light of the fact that there was sanctionable misconduct here—on the part of the government itself. Scott Lloyd, the official who blocked Doe and other minors from abortion access, likely violated a long-standing federal settlement agreement in his anti-abortion crusade. Under this agreement, undocumented minors like Doe must be allowed access to family planning services, which Lloyd intentionally and repeatedly withheld. He even instituted his anti-abortion views as official government policy in obvious violation of the federal settlement.

If anyone deserves to be punished here, it is surely Lloyd, who flouted the law for purely ideological purposes. But instead of investigating its own employee for potential misconduct, the government is going after Doe’s ACLU attorneys for defending her constitutional rights. This is a shocking assault on the nation’s civil rights attorneys, and an unprecedented effort by the DOJ to slander and shame those attorneys who defend their clients’ rights against the government’s abuse of the law. After today, lawyers who question the Trump administration’s legal views should be aware that they have targets on their backs.

[Slate]

Trump calls for death penalty for NYC terror suspect, considers him ‘enemy combatant’

President Donald Trump called for the New York City terror suspect to get the death penalty in a late-night tweet Wednesday just hours after Sayfullo Saipov was charged with providing support to ISIS and violence and destruction of motor vehicles.

Trump referenced Saipov’s request to hang an ISIS flag in his hospital room, an anecdote relayed by authorities Wednesday afternoon, and said he “SHOULD GET DEATH PENALTY!” in all capital letters.

Earlier in the afternoon, Trump raised the possibility of sending the alleged perpetrator to Guantanamo Bay prison. The White House press secretary said the administration considers him to be an “enemy combatant.”

“I believe we would consider this person to be an enemy combatant,” Sarah Sanders said in response to questioning at Wednesday’s White House press briefing.

As an “enemy combatant,” Saipov, the suspect in the attack, could face an altered interrogation and prosecution process.

Trump earlier condemned the United States criminal justice system and labeled Saipov an “animal.”

“We have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now,” Trump said. He added: “What we have right now is a joke” before responding affirmatively when asked if he wanted the alleged assailant to be sent to the Cuban prison notorious for housing alleged terrorists and enemy combatants.

“I would certainly consider it. Send him to Gitmo,” he said, using a nickname for Guantanamo Bay. “I would certainly consider it.”

The president further signaled his intention to “terminate the diversity lottery program,” the visa lottery under which Saipov was admitted from Uzbekistan seven years ago. The Department of Homeland Security confirmed Saipov utilized the program Wednesday. Trump said he would be asking Congress to “get rid of” the policy in favor of a “merit-based program.”

Earlier in the day, Trump pointed a finger at Sen. Chuck Schumer, D-N.Y., for the immigration policies he claims are connected to the attack that left eight people dead and many more injured.

“The terrorist came into our country through what is called the ‘Diversity Visa Lottery Program,’ a Chuck Schumer beauty,” Trump said on Twitter Wednesday.

Trump also promoted the suggested “merit-based” immigration system.

[ABC News]

Reality

By Trump swaying the decision early and attempting to bully the judiciary, he could possibly have tainted the case against Saipov.

Hours after Trump calls US justice system ‘a laughingstock,’ White House denies he ever did

The White House on Wednesday flatly denied that President Donald Trump had ever called the American criminal justice system “a joke and a laughingstock,” just hours after Trump said precisely that during a televised Cabinet meeting.

“We need quick justice and we need strong justice — much quicker and much stronger than we have right now — because what we have right now is a joke, and it’s a laughingstock,” Trump said at the meeting.

The president’s remark followed a terror attack in New York City on Tuesday that killed eight people. The suspect, Sayfullo Saipov, was shot on the scene and quickly taken into custody. Authorities later found items that indicate the attack was inspired by ISIS.

A few hours after Trump’s Cabinet meeting, CNN’s Jim Acosta asked White House press secretary Sarah Huckabee Sanders, “Why did the president call the U.S. justice system a joke and a laughingstock?”

“That’s not what he said,” Sanders replied. “He said that process has people calling us a joke and a laughingstock.”

Sanders went on to say that the president was frustrated by how long and costly it is to prosecute individuals accused of terror-related crimes under U.S. law.

“Particularly for someone to be a known terrorist, that process should move faster. That’s the point [Trump] is making. That’s the frustration he has,” she said.

To be sure, Trump did express his frustration at the slow pace of the justice system during his Cabinet meeting, saying the nation needed “to come up with a punishment that’s far quicker and far greater than the punishment these animals are getting right now.” But he never said there were “people calling us a joke.”

Wednesday’s press briefing left reporters stunned, as they compared Sanders’ denial with the official transcript of Trump’s remarks in the Cabinet meeting.

CNBC asked the White House to clarify how Sanders could have claimed “that’s not what [the president] said” when that was, in fact, precisely what the president said. The White House did not immediately respond.

[CNBC]

Media

Trump calls US justice system ‘a laughing stock,’ White House denies it from CNBC.

Trump labels US justice system ‘laughing stock’

President Donald Trump called for “quick justice” and “strong justice” for terror suspects in the wake of the deadly New York City attack.

We have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now. They’ll go through court for years. At the end, they’ll be — who knows what happens. We need quick justice, and we need strong justice. Much quicker and much stronger than we have right now, because what we have right now is a joke, and it’s a laughing stock. And no wonder so much of this stuff takes place.

Tuesday’s terror attack in New York was the city’s deadliest since 9/11. Sayfullo Habibullaevic Saipov drove a rented van down a bike path, law enforcement sources have said. The attack killed six victims instantly, while two others died later. New York politicians and officials quickly labeled the incident a terror attack.

[CNN]

Reality

As Vox points out, this is verifiably false pretty much from top to bottom.

There is no evidence that US courts are unable to prosecute terrorism suspects in a timely fashion. The opposite: Since 9/11, more than 620 individuals have been convicted on terrorism charges in 63 separate federal courts, according to a May 2017 count by Human Rights First. None of these terrorists have broken out of prison, and none of the courts have suffered retaliatory attacks.

Moreover, the US already tried to set up an alternative system — the military tribunals at Guantanamo Bay, Cuba, that George W. Bush established after 9/11 — and it was a disaster.

Military courts are well equipped to try US service members who violate military laws, but aren’t set up to deal with complex and wide-ranging constitutional and classification issues raised by major terrorism prosecution. This makes them slower and puts verdicts on less sure legal footing. In the same time span that civilian courts convicted 620 individuals on terrorism charges, military commissions convicted a grand total of eight people.

Trump Brags to Russians About Firing ‘Nut Job’ Comey

President Donald Trump bragged to two top Russian officials last week that firing “nut job” FBI Director James Comey eased “great pressure” on him, The New York Times reported Friday.

“I just fired the head of the FBI. He was crazy, a real nut job,” Trump said, according to the Times. “I faced great pressure because of Russia. That’s taken off.”

Trump’s Oval Office meeting with Russian Foreign Minister Sergey Lavrov and Russian Ambassador to the US Sergey Kislyak came one day after Comey was fired.

White House press secretary Sean Spicer did not refute the Times story but said it was Comey’s “grandstanding and politicizing” of the Russia investigation that put pressure on the administration’s ability to engage Moscow.

“The President has always emphasized the importance of making deals with Russia as it relates to Syria, Ukraine, defeating ISIS and other key issues for the benefit and safety of the American people,” Spicer said in a statement to CNN. “By grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia.”

He added, “The investigation would have always continued, and obviously, the termination of Comey would not have ended it. Once again, the real story is that our national security has been undermined by the leaking of private and highly classified conversations.”

Trump’s dismissal of Comey was met with bipartisan derision. The move, which came after Trump asked Comey for his loyalty and, according to memos written by the former FBI director, requested he kill an investigation into Trump’s top national security adviser, was seen as a clear violation of protocol and had some Democrats calling for impeachment.
The President maintains he was surprised by the response to Comey’s firing.

“Director Comey was very unpopular with most people,” he said Thursday at a news conference. “When I made that decision, I actually thought that it would be a bipartisan decision. Because you look at all of the people on the Democratic side, not only the Republican side, that were saying such terrible things about Director Comey.”
The news broke shortly after Trump took off for his critically important five-country, eight-day foreign trip, the first of his presidency.

Even before Friday’s report, news about Comey and the newly named special counsel for the Russia investigation has threatened to overshadow Trump’s trip.

Trump’s meeting with Lavrov and Kislyak was controversial before news of talk about Comey ever came out. No United States media were invited in for the meeting, but a photographer from TASS, the Russian state media organization, was in the room for at least part of the gathering. The meeting was also personal request from Vladimir Putin. The Russian President asked that they meet when he spoke with Trump earlier this month.

[CNN]

Reality

The White House did not refute the report, but instead tried to claim “pressure” Trump was referring to was the FBI’s investigation gave Trump an inability for diplomatic negotiations with Russia But how is that any better? The White House is still admitting Comey was fired for political reasons.

Trump Uses Power of Office to Intimidate Witness Sally Yates

CNN’s Dana Bash and John King slammed President Trump on Monday for tweeting about former acting Attorney General Sally Yates, calling it “witness intimidation” ahead of her testimony to a Senate Judiciary subcommittee.

“Before I covered politics all the time, I used to cover the courts a lot. A lawyer would call that witness intimidation,” King, the host of “Inside Politics,” said.

Bash agreed with that charge. “Completely. Look, I think that we have all been kind of desensitized, in some way, to his tweets and to his statements that are so out of the norm,” Bash, the network’s chief political correspondent, said. “This is beyond out of the norm. This is inappropriate.

“For the president of the United States to be this aggressive with somebody who used to work for him, who is coming before the United States Congress in sworn testimony hours later, is beyond the pale. It just is.”

Trump sent two successive tweets on Monday morning, including one directed at Yates urging lawmakers to ask “if she knows how classified information” was leaked to the press.

Yates, a former acting attorney general who was fired by Trump for her refusal to defend his travel ban, will testify during a Senate hearing on Russian interference in the U.S. presidential election.

Yates is expected to testify that she warned the White House about former national security adviser Michael Flynn’s contacts with Russia, which would contradict the administration’s claims.

(h/t The Hill)

Media

Trump Says He May Break Up 9th Circuit Court After Rulings Go Against Him

President Trump is considering breaking up the 9th Circuit Court after a federal district court judge in its jurisdiction blocked his order to withhold funding from “sanctuary cities.”

In a Wednesday interview with the Washington Examiner, Trump said “there are many people who want to break up the 9th Circuit. It’s outrageous.”

In the interview, Trump accused liberals of “judge-shopping” for a court that would strike down his executive order.

“I mean, the language on the ban, it reads so easy that a reasonably good student in the first grade will fully understand it. And they don’t even mention the words in their rejection on the ban,” Trump said.

Trump claimed the court oversteps its authority and that his opponents “immediately run” to the court for “semi-automatic” rulings.

The 9th Circuit earlier this year blocked Trump’s executive order that barred immigration from certain Muslim-majority countries and banned all Syrian refugees from the U.S. for a period of time.

Earlier Wednesday, Trump railed against the 9th Circuit over a judge blocking his order withholding funds from sanctuary cities.

If Trump decides to move forward with plans to break up the court, he’ll have Republican support. Earlier this year, Sen Jeff Flake (R-Ariz.) voiced support for breaking up the court, which is seen as one of the most liberal in the country.

On Tuesday, a federal judge rejected Trump’s order to defund sanctuary cities, arguing that the White House had overreached with requirements not related to law enforcement.

The 9th Circuit Court covers Arizona, California, Alaska, Nevada, Idaho, Oregon, Montana, Washington and Hawaii, as well as Guam and the Northern Mariana Islands.

Eighteen of the court’s 25 judges were appointed by Democratic presidents.

(h/t The Hill)

Reality

First of all, Trump is angry at the wrong court. The most recent ruling against Trump, in which Judge William Orrick issued an injunction blocking his executive order targeting so-called sanctuary cities, wasn’t handed down by the 9th Circuit. Orrick sits on the U.S. District Court in San Francisco, which is one level below the appeals court.

Donald Trump is still learning the Constitution. His hands are completely tied when it comes the the courts. Trump can’t break up a circuit court on his own. He needs the help of Congress, who would need a super-majority to pass. While most Republicans polled wouldn’t back it, Democrats alone could block any legislation to break up the 9th circuit.

Trump just blasted the wrong court for ‘blocking’ his sanctuary cities order

President Donald Trump lashed out again at the American judiciary for blocking a piece of his agenda.

Except on Wednesday, he got his court wrong.

In a morning tweet, he blamed the 9th Circuit Court of Appeals for blocking his order to withhold funding from so-called sanctuary cities. He called the ruling “ridiculous” and signaled that his administration will appeal by saying “see you in the Supreme Court.”

The problem: Tuesday’s ruling did not come from the 9th Circuit. It was made in federal district court in San Francisco.
Earlier this year, the 9th Circuit did block Trump’s executive order restricting travel from several predominantly Muslim countries.

White House chief of staff Reince Priebus also targeted the appeals court in comments to reporters Tuesday, according to The Hill.

Politico, which first pointed out Trump’s error, noted that the 9th Circuit would hear the case next if the Trump administration appeals.

(h/t NBC News)

Jeff Sessions Dismisses Hawaii as ‘an Island in the Pacific’

Attorney General Jeff Sessions spoke dismissively about the State of Hawaii while criticizing a Federal District Court ruling last month that blocked the Trump administration from carrying out its ban on travel from parts of the Muslim world.

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power,” Mr. Sessions said this week in an interview on “The Mark Levin Show,” a conservative talk radio program.

Mr. Sessions’s description of Hawaii, where the federal judge who issued the order, Derrick K. Watson, has his chambers, drew a rebuke from both of the United States senators who represent the state. Annexed as a territory of the United States in the late 19th century, Hawaii became the 50th state in 1959.

“Hawaii was built on the strength of diversity & immigrant experiences — including my own,” Senator Mazie Hirono, Democrat of Hawaii, wrote on Twitter. “Jeff Sessions’ comments are ignorant & dangerous.”

The other senator from Hawaii, Brian Schatz, who is also a Democrat, expressed similar sentiments, writing on Twitter: “Mr. Attorney General: You voted for that judge. And that island is called Oahu. It’s my home. Have some respect.”

Asked for a response from Mr. Sessions, Ian Prior, a spokesman for the Justice Department, said in an email: “Hawaii is, in fact, an island in the Pacific — a beautiful one where the attorney general’s granddaughter was born. The point, however, is that there is a problem when a flawed opinion by a single judge can block the president’s lawful exercise of authority to keep the entire country safe.”

(The State of Hawaii is a chain of islands, one of which is also called Hawaii; the judge’s chambers, however, are in Honolulu, which is on the island of Oahu.)

Judge Watson, an appointee of former President Barack Obama, was confirmed in 2013 by a 94-to-0 vote; Mr. Sessions, then a United States senator from Alabama, was among those who cast an approving vote. A former federal prosecutor, Judge Watson earned his law degree from Harvard alongside Mr. Obama and Neil M. Gorsuch, the newly seated Supreme Court justice. He is the only judge of native Hawaiian descent on the federal bench.

Last month, Judge Watson issued a nationwide injunction blocking President Trump’s travel ban, ruling that the plaintiffs — the State of Hawaii and Ismail Elshikh, the imam of the Muslim Association of Hawaii — had reasonable grounds to challenge the order as religious discrimination. He cited comments dating to Mr. Trump’s original call, during the 2016 campaign, for a “total and complete shutdown of Muslims entering the United States.”

During the arguments, the government had contended that looking beyond the text of the order to infer religious animus would amount to investigating Mr. Trump’s “veiled psyche,” but Judge Watson wrote in his decision that there was “nothing ‘veiled’” about Mr. Trump’s public remarks. Still, Mr. Sessions reiterated that line of argument in the radio interview, saying he believed that the judge’s reasoning was improper and would be overturned.

“The judges don’t get to psychoanalyze the president to see if the order he issues is lawful,” Mr. Sessions said. “It’s either lawful or it’s not.”

(h/t New York Times)

Media

 

Trump Slams His Own SCOTUS Pick, “I’ll Criticize Judges!”

President Trump on Tuesday said the courts aren’t helping the administration in its attempts to strengthen the country’s vetting procedures to weed out potential terrorists.

“We’re also taking decisive action to improve our vetting procedures,” Trump said, speaking at the National Republican Congressional Committee dinner.

“The courts are not helping us, I have to be honest with you. It’s ridiculous. Somebody said I should not criticize judges. OK, I’ll criticize judges.”

Earlier this year, Trump blasted James Robart, the federal judge for the Western District of Washington who placed a halt on Trump’s initial travel ban. The president referred to Robart as a “so-called judge.”

During the campaign, he also attacked the judge hearing a lawsuit against Trump’s defunct real estate education program, Trump University, saying that his Mexican heritage makes him unable to be impartial.

On Tuesday, Supreme Court nominee Neil Gorsuch said during his confirmation hearing that he finds the president’s criticism of judges’ integrity “disheartening and demoralizing.”

“I know these people and how decent they are, and when anyone criticizes the honesty, integrity and motives of a federal judge, I find that disheartening and demoralizing because I know the truth,” Gorsuch told Sen. Richard Blumenthal (D-Conn.).

“Anyone including the president of the United States?” Blumenthal asked.

“Anyone is anyone,” Gorsuch replied.

Earlier this month, a federal judge in Hawaii issued a temporary restraining order on parts of the president’s revised travel ban.

(h/t The Hill)

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