WASHINGTON – In the showdown between President Donald Trump and the judiciary over his travel ban, the president Wednesday called a federal district court’s suspension of the ban “sad” and “disgraceful,” said it would endanger Americans and suggested politics motivated the judges.
“I don’t ever want to call a court biased so I won’t call a court biased … but courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right,” Trump told a meeting of police chiefs and sheriffs and police chiefs meeting.
“Right now we are at risk from what happened,” the president said, returning to a familiar theme: that not barring citizens of seven predominantly Muslim countries and all refugees would put the nation’s security at risk.
Trump read a part of a statute that gives the president power to “suspend the entry of all aliens,” adding: “A bad high school student would understand this. Anybody would understand this. It’s as plain as you could have it.”
Earlier Wednesday, Trump tweeted: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”
Trump has faced mounting criticism over his attacks on the federal judiciary, beginning last week with calling U.S. District Judge James Robart in Seattle, who ordered a nationwide halt to the travel ban, a “so-called judge.”
After Robart blocked Trump’s order nationwide Friday night, the president tweeted: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
Democrats, along with some Republicans, have criticized Trump’s personal attacks on judges.
And on Wednesday, Trump’s Supreme Court nominee, federal Judge Neil M. Gorsuch, called the president’s attacks on the judiciary “demoralizing” and “disheartening.”
Trump’s latest comments came after two federal appeals court judges sharply questioned a U.S. government lawyer on the travel ban on citizens from seven predominantly Muslim countries and refugees worldwide. The judges expressed skepticism over his responses.
During highly unusual, live-streamed oral arguments (archived here) listened to across the world, the 9th U.S. Court of Appeals is weighing the government’s bid to lift the suspension of the travel ban imposed by a federal judge in Seattle.
A decision is expected this week in the challenge, and the case will likely reach the shorthanded U.S. Supreme Court. A 4-4 tie would leave the appeals court ruling in place.
Trump’s Jan. 27 executive order imposing the ban immediately set off chaos, confusion and protests throughout the nation and across the globe.
Supporters call the ban a vital national-security tool to prevent terrorism in the United States. Critics say Trump exceeded his authority under the Constitution when he issued the order and that the ban unlawfully discriminates against Muslims, damages U.S. relations with other countries and increases the likelihood of terrorism on U.S. soil.
In oral arguments in State of Washington et al. v. Trump et al., Tuesday night, August Flentje, special counsel to the assistant U.S. attorney general, said that Washington state had no constitutional right to challenge the ban and that the president holds exclusive power on national-security issues.
“Congress has expressly authorized the president to suspend entry of categories of aliens,” Flentje said.
“The district court’s decision overrides the president’s national security judgment about the level of risk and we’ve been talking about the level of risk that’s acceptable.”
Judge Michelle Friedland then asked: “Are you arguing, then, that the president’s decision in that regard is unreviewable?”
Flentje paused before answering, “Yes.”
“There are obviously constitutional limitations, but we’re discussing the risk assessment,” he said.
Friedland, an appointee of former President Barack Obama, asked Flentje to elaborate on limitations. Flentje did not answer.
The judge then asked Flentje, “Has the government pointed to any evidence connecting these countries with terrorism?”
He responded that the Justice Department had not had time to introduce evidence on terrorism in court during the rapidly unfolding battle over the travel ban.
“These proceedings have been moving quite fast, and we’re doing the best we can,” Flentje said.
To which Friedland replied: “Maybe the government’s appeal is premature.”
Judge William Canby Jr., an appointee of President Jimmy Carter, asked Flentje how many people who came from the seven countries on visas had committed federal offenses. Canby answered his own question: none. Nor did any of the 9/11 terrorists come from any of the seven predominantly Muslim countries targeted by the ban.
Canby asked Flentje, “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’ ”
Flentje said the two states could not successfully challenge such an order.
Flentje, who paused often and at times seemed to fumble for words, said at one point, “I’m not sure I’m convincing the court.”
Trump’s order suspended entry to citizens of the seven countries for 90 days, to refugees for 120 days and to Syrian refugees indefinitely.
The attorney for Washington state and Minnesota, Noah G. Purcell, the Washington state solicitor general, told the three-judge panel in that the Justice Department had failed to prove “irreparable harm” to the Trump administration. The president’s Jan. 27 order harmed people in the state of Washington, Purcell said.
Reinstating the travel ban would “throw this country back into chaos” and urged the judges to serve “as a check on executive abuses,” Purcell said.
Judge Richard R. Clifton, an appointee of President George W. Bush (the only one of the three judges appointed by a Republican), said that the seven countries are linked to terrorism and that there could be a religious element to the terrorism. “It’s kind of hard to deny,” Clifton said.
The judge asked Purcell how the ban could be anti-Muslim if it affected only a small fraction of the world’s Muslims.
“To prove religious discrimination we do not need to prove this order harms only Muslims … or every Muslim,” said Purcell, citing Trump’s repeated statements about a “Muslim ban” and a preference for Christians.
Trump earlier Tuesday threatened to appeal to the Supreme Court if the court refuses to reinstate the ban.
Trump insists the order is not a “Muslim ban,” but 87,000 of the 90,000 affected by the ban are Muslims from Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen. The ban blocks entry to the U.S. to all refugees for 120 days and to Syrian refugees indefinitely.
And 20,000 refugees seeking U.S. entry would be banned in the 120 days, the United Nations commissioner on refugees said Friday.
Purcell argued a stay should not be granted unless the Trump administration demonstrates it is likely to win the appeal.
On the eve of the oral arguments, Trump took to Twitter Monday and raised the specter of terrorism on U.S. soil if the suspension is upheld – and said the judiciary would be responsible if terrorists attacked the nation.
“Just cannot believe a judge would put our country in such peril,” Trump tweeted. “If something happens blame him and court system. People pouring in. Bad!”
In a follow-up tweet, he said: “The threat from radical Islamic terrorism is very real, just look at what is happening in Europe and the Middle East. Courts must act fast!”
Friedland said the court would decide the case “as soon as possible.”