February 9th, 2017

Predicting a ruling from the 9th Circuit on Trump’s EO

So, how will the 9th Circuit rule on the TRO against Trump’s EO?

Or will there even be a ruling by that court at this time? Andrew McCarthy explains why there shouldn’t be (at least for now), and why the matter should be punted back to Seattle federal district judge James Robart for a fuller proceeding in that court.

But as far as I can see, most people think the 9th will be issuing a decision fairly soon. And I don’t think it takes a master prognosticator to say that it’s highly likely that the ruling will go against Trump’s order—and that this could have been predicted even before the case was heard, strictly on the basis of the political makeup of the 9th Circuit. The three federal judges who make up the 9th Circuit are Judge William C. Canby Jr, appointed by Carter, Judge Michelle T. Friedland, appointed by Barack Obama, and Judge Richard R. Clifton, appointed by George W. Bush. That indicates to me that the decision is most likely to go at least 2-1 against Trump.

I had some difficulty discovering how Judge Clifton—the Bush appointee—had ruled in the court’s earlier refusal to immediately lift Robart’s original TRO. Then I learned why the information had been so hard to locate:

…[O]nly Canby and Friedland were listed as joining in the initial order denying a so-called administrative stay of Robart’s ruling while the appeals court mulls the issue. It was not immediately clear why Clifton was not mentioned in the order, but 9th Circuit procedures allow some motions to be decided by the first two judges who receive the request, if they agree. A 9th Circuit spokesman did not immediately respond to a request early Sunday for comment on Clifton’s absence from the order.

So my guess is that, once it was clear how the other two judges would be voting, there was no need for Clifton to weigh in officially, and so he didn’t. Therefore we still don’t know much about his leanings. But it really doesn’t matter, because (as already indicated) I would bet an enormous amount of money that Canby and Friedland will be ruling against Trump. I would add that this would be true even if the DOJ attorney had done a bang-up job in presenting the Trump case, which he apparently did not.

I say he did a poor job based on the reaction of just about every commentator I’ve read on the subject, left or right. I haven’t listened to his argument or read a transcript myself, but the unanimity of the criticism indicates to me that he probably did in fact do a bad job.

If so, why? There are several possibilities. One can be found here. Apparently, Flentje was a last-minute replacement:

Just hours before mounting the biggest defense of the young Trump administration, the Justice Department swapped lawyers.

The U.S. said the two top lawyers representing the U.S. would not take part in Tuesday’s hearing, because of their past relationship with one of the world’s biggest law firms, Jones Day. Instead, August Flentje, a longtime Justice Department lawyer, will argue the administration’s case.

The lawyers who stepped aside worked until recently at Jones Day, which filed a brief on Monday opposing the administration’s order to bar U.S. entry to people traveling from seven majority-Muslim countries. The executive branch doesn’t have “unreviewable authority” to suspend the admission of a class of aliens, Jones Day argued in a brief on behalf of several constitutional scholars.

That sounds like a nightmare scenario to me, the lawyer’s version of the student anxiety dream or the actor’s forgetting lines and having to go on stage.

What’s more, there’s this:

It’s standard practice for lawyers who join a new administration to distance themselves from any matter that involves their law firms. What’s rare is that an administration would need its solicitor general and Justice Department to defend a signature action just weeks into its first term, when affiliations with previous employers are so fresh.

So another factor here is the speed with which the lawsuit occurred. The Trump administration is only two and a half weeks old and this issue is already being heard in the courts. That’s at least in part because Trump himself acted with such speed in issuing his EO. Whether you see Trump’s extreme speed as having been necessary or not, it seems to have affected the legal defense in a court challenge that could have and should have been predicted by the administration.

Then there’s the question of whether Flentje really believed in his case, in the political sense. It’s not all that unusual for lawyers to be placed in the position of advocating for things in which they don’t believe. That’s actually one of the reasons lawyers are detested by a lot of people, and seen as hypocrites for hire (or whores, if you want to get nastier about it). I don’t agree with that characterization; I think this aspect of lawyering is an inevitable part of our adversarial legal system, and I see no way around it and do not blame lawyers for it. A good lawyer can transcend it if he/she wants to, but that lawyer has to want to.

I have no idea whether this was a factor for Flentje; after all, his last-minute substitution might fully account for his shaky performance and there’s no need to invoke lack of zeal as well. But it’s possible. Here are some details of Flentje’s history:

August Flentje, an Ivy League lawyer and son of a professor, is from a family with members who have protested the ban, and he’s been involved in controversial cases before, such as the government’s previous defense of traditional marriage…

According to Bloomberg, Flentje has worked as a lawyer for the Department of Justice for 19 years.

He was involved for the DOJ in defending the federal Defense of Marriage Act. A group called the Pacific Justice Institute included his name, though, on a list, alleging that Justice Department attorneys were working to sabotage the government case or were not defending its side vigorously enough.

His name appears on government filings in the gay marriage litigation.

According to Law 360, he argued for the government in a case in which “the U.S. Department of Defense…urged the D.C. Circuit to uphold a federal judge’s decision to keep classified a document purportedly related to the release of five Guantanamo Bay detainees in exchange for accused deserter U.S. Army Sgt. Bowe Bergdahl, saying the document sought by a conservative group is covered by the deliberative process privilege.”

So—as one might expect from a lawyer who obtained his DOJ job during the Clinton administration, and stayed on through Bush’s and Obama’s two terms each—Flentje has defended the government on both sides of the fence. His dad has this to say about him (make of it what you will):

Flentje’s father told the Wichita Eagle newspaper that Flentke [sic] would put personal beliefs aside to argue the immigration ban case.

“He’s a civil servant, and I think he’s been very careful,” his father told the local newspaper. “We have family members protesting what’s going on, but he plays it pretty close and I think has a deep sense of duty, representing to the best of his ability the president within the law and the Constitution.”

That sounds like a hypothetical to me: Flentje would put his personal beliefs aside (if they conflict) rather than that he will put his personal beliefs aside (because they do conflict). We don’t know much about what his personal beliefs might actually be, and I doubt he’ll be telling us.

25 Responses to “Predicting a ruling from the 9th Circuit on Trump’s EO”

  1. Cornhead Says:

    Andy McCarthy’s analysis is sound on the law and therefore the two Libs will do something different. Questions about a Muslim ban were wrong.

  2. Big Maq Says:

    “We don’t know much about what his personal beliefs might actually be, and I doubt he’ll be telling us.” – Neo

    Of course.

    But, if there is such great doubt about this man’s intentions or ability, wouldn’t it behoove this admin to hire lawyers they know?

    Not like they couldn’t contract it out.

  3. Cap'n Rusty Says:

    Being of a suspicious mind, I’m thinking that the attorneys back at Jones Day filed the amicus specifically for the purpose of giving the hotshots Francisco and Readler an excuse to not represent Trump, and thereby let the task fall on the flunky Flentke. I’m pretty sure Jones Day had some big tech firms as clients, and it is those firms who seem to be most opposed to the ban, because money.

  4. Richard Saunders Says:

    The administration needs to stall the case by asking for en banc review and get Gorsuch confirmed forthwith.

  5. Bill Says:

    Regarding the general topic of Trump and court cases.

    Will he increase his chances of favorable rulings by not pre-emptively insulting and bullying of the judiciary? “So-called judge”, things like that?

  6. huxley Says:

    I’m thinking that the attorneys back at Jones Day filed the amicus specifically for the purpose of giving the hotshots Francisco and Readler an excuse to not represent Trump, and thereby let the task fall on the flunky Flentke.

    Cap’n Rusty: I don’t know the law but that was my thought when reading the Powerline post: WHY NOT THE “A TEAM,” PART TWO.

  7. CW Says:

    I don’t believe every lawyer can argue as convincingly for something he secretly disagrees with as he can something that he sincerely believes in. You may be able to make an argument based upon the law (or the twisting thereof), but if you have to sell your argument on the logic of it this might bring your own prejudices into question. Most people don’t find it easy to go there.

    Trump’s SCOTUS nominee said that a judge who always likes his own decisions is probably a bad judge. I’m guessing that the leftwing judges on the 9th circuit would be the perfect example of that.

  8. Geoffrey Britain Says:

    I too will be shocked if the 9th Court doesn’t uphold Robart’s stay. If the case gets to the Supreme Court before Gorsuch is confirmed, I expect a 4-4 tie, in which case the stay remains. Facing Trump with a Constitutional crisis and the predictable calls for impeachment if he ignores the SC ruling. Even if impeachment fails, Trump is further illegitimized in the minds of the LIVs.

  9. Tuvea Says:

    Well … gosh … if a limited ban concerning certain countries is unconstitutional because it DISCRIMINATES against a certain group or class … a blanket ban stopping ALL immigration cannot be so construed.

    The left should be careful for what it wishes … or not 🙂

  10. neo-neocon Says:

    Big Maq:

    There was no time to do that. The other attorneys pulled out at almost the last minute. It says “just hours.”

  11. Oldflyer Says:

    Several disparate thoughts.
    Gee, wouldn’t it be nice to think that Judges would decide a case on the basis of the law, and not the quality of the presentation, or their own political beliefs? Oh, well.

    The delay of confirming AG Sessions may take a toll here.

    I wonder how the media will react if the EO is overturned, and a “refugee” from one of the seven countries commits a terrorist act?

    I am on a roller coaster with Trump. I was tremendously encouraged by his appointments; but, I am getting very worried about his “hip shot” comments. (That was one of my concerns back in the campaign.) If they are part of some grand strategy, I hope that they are a tactic of limited duration. If he can’t control himself; then trouble lurks.

  12. Bill Says:

    “Facing Trump with a Constitutional crisis and the predictable calls for impeachment if he ignores the SC ruling.”

    Well, if Trump ignored an SC ruling that would be a constitutional crisis.

    Conservatives, please, remember that Trump will not be president forever. There have been plenty of bad precedents set before. We live now in a political world where every single battle is considered the Battle of the Bulge and not one inch can be given.

    What’s the purpose here? For Trump to get a “win” or for our country to be made more safe?

    Trump could have done a much better job enacting this EO. Yes, he was going to get push-back no matter what. But explaining it more fully, giving time to enact it in a reasonable way, etc. would have helped his chances. I know that’s not the Trump way.

    Listen, he’s not all that popular. A lot of people are willing to see how things go, but he’s not GWB after 9/11 with a 90% approval rating or something. His actions since he got in office have only helped cement the impression people like me already had – he’s a loose cannon with limited self-control. Attacking everyone who comes against him, attacking other branches of government (“so-called judge”) – remember the quaint days when everyone was waiting for his big presidential “pivot”?

    This was an unforced error. He still may get a favorable ruling, but he hasn’t played the game very smart.

    And – again – if he ignores the SC that would by definition be a constitutional crisis. You may want that. I don’t. I like my presidents to be part of a co-equal branch of government, not able to ignore or squash the other two. So did you, when Obama was president. So will you, when a Democrat is back in office.

  13. Bill Says:

    “I wonder how the media will react if the EO is overturned, and a “refugee” from one of the seven countries commits a terrorist act?”

    Well, if someone gets in and does that who would not have gotten in if the EO is upheld, that will be a very big deal.

    It’s important to understand that no refugee admitted into the US since the 1980 refugee act has been convicted of a terrorist act (https://www.cato.org/publications/policy-analysis/terrorism-immigration-risk-analysis)

    Doesn’t mean it can’t or won’t happen, of course. But it does point to a good amount of propaganda that has been thrown around in recent days/years.

  14. Bill Says:

    Ironically, probably the best thing for Trump’s agenda (not the country) would be for the EO to be left unenforced and for someone from one of the seven countries to commit an act of terror.

    I don’t want to see that, but it would definitely be a major “I told ya so” for Trump to consolidate his power.

    I’m for continuing to strengthen our vetting, while retaining sane/non-reactionary and even humane refugee policies and immigration policies.

  15. Geoffrey Britain Says:

    Bill,

    Insisting that it’s a knife fight, when your enemy brings a gun is an excellent means of committing suicide.

    Ignoring the FBI and other officials have stated that reliable vetting is impossible, you also ignore the statistics that show that succeeding generations of Muslim immigrants radicalize in ever greater percentages as Muslim percentage of population increases.

    Clearly due to the Koran’s explicit declarations about the infidel and therein, Allah’s existential imperatives upon Muslims to subdue the infidel.

  16. Roy Lofquist Says:

    I invite you to watch this video of Trump making his case.

    http://www.foxnews.com/politics/2017/02/08/trump-mounts-public-defense-immigration-order-blasts-political-courts.html

    Dunno. Looks fairly effective to me.

  17. Cap'n Rusty Says:

    Bill:

    “Well, if Trump ignored an SC ruling that would be a constitutional crisis.”

    It is highly unlikely that there will be a Supreme Court “ruling” to ignore. If there are only eight justices when the appeal of the 9th CC gets to the court, it will deadlock at 4/4, which is not a ruling and the 9th CC decision stands.

    If Gorsuch gets to the bench, the ruling will reverse the 9th CC.

    As to Trump giving more time when enacting the XO, isn’t it obvious that if he had said he was going to close the gates next week, there’d be a rush to get in tomorrow?

    Further, underlying all of this is the fact that Judge Robart’s TRO was groundless. The applicable statute (8 USC 1132(f)) gives Trump plenary power to ban foreigners from our shores for any reason.

  18. OM Says:

    Geoffrey:

    Focus, it’s about the 9th Circus and a less than adequate rollout of a policy implemented by an EO. The policy wasn’t about how to deal with all of Islam and the rest of the world.

  19. Big Maq Says:

    “If Gorsuch gets to the bench, the ruling will reverse the 9th CC.” – Rusty

    I see enormous pressure for him to do so, being a new trump appointment, but nothing that guarantees he would.

    Remember Roberts’ ruling on obamacare?
    .

    “Insisting that it’s a knife fight, when your enemy brings a gun is an excellent means of committing suicide. “ – GB

    This type of overwrought argument / tired analogy just adds to the fog of nonsense than actually deal with the case at hand.

    As if Bill (or anyone here, as I can tell), by implication, are arguing that we shouldn’t take the terrorist threat seriously.

    Pure red vs blue.
    .

    @Roy – even if we were to agree that it is an effective case made, it is rather late.

    But, proclaiming that everyone in the room would agree with him, that the EO was written “beautifully”, that a “bad HS student” could understand it (and presumably agree), and that “”I don’t ever want to call a court biased … but courts seem to be so political”, are all hardly part of a good case to be made.

    When I come away feeling I can make a much better case, being an average joe, then trump is falling well short of where he needs to be.

  20. Big Maq Says:

    “There was no time to do that. The other attorneys pulled out at almost the last minute. It says “just hours.”” – Neo

    May be true if we only look at these particulars, but, stepping back, might this have been a consideration from the point this became a TRO, and the admin could have prepared for such a concern?

    If / when this heads to the SCOTUS, if this argument about the competency / motivation of the DOJ lawyers continues, it’s now fully on trump and his admin, as they surely have the option to make 100% certain they have the best advocates on it.

    trump ran a campaign that bragged about his competency and intelligence above all others. He needs to prove it vs blame others and seek excuses.

    We need to start holding trump and his admin accountable for his / their own failures as well as enjoy his / their successes.

  21. neo-neocon Says:

    Big Maq:

    I agree that they should have been better prepared for this and for several other possibilities. There’s plenty to criticize. Right from the start I saw a number of flaws in the way the EO was issued, and felt that there was a lot of confusion caused by it that was unnecessary and sloppy.

    This is why they should have taken more time AND more care.

  22. neo-neocon Says:

    Big Maq; Cap’n Rusty:

    It’s not just Gorsuch who’s important and/or hard to predict. Kennedy, the swing justice, is hard to predict. And Andrew McCarthy (a pretty good predictor, in my book) says Kennedy may indeed rule against Trump. See this article.

  23. Big Maq Says:

    “It is highly unlikely that there will be a Supreme Court “ruling” to ignore. If there are only eight justices when the appeal of the 9th CC gets to the court, it will deadlock at 4/4, which is not a ruling and the 9th CC decision stands. “ – Rusty

    One of the reasons exactly why this EO and the haste behind it was ill considered.

    The best outcome might be that, if the TRO holds, the SCOTUS kicks it back down to consider another point, the WH withdraw the order and issue a new one, once all the SCOTUS seats are filled.

    Still, there is always the risk that taking an issue all the way to SCOTUS might further shut down any leeway the WH might have wanted and then some.

    Not something to approach so cavalierly has this POTUS has.

  24. Big Maq Says:

    @Neo – didn’t see your last post before my last comment. Yes, there is risk when going to SCOTUS.

  25. Bill Says:

    GB, let me take these one at a time: “Insisting that it’s a knife fight, when your enemy brings a gun is an excellent means of committing suicide.”

    I assume this is along the lines of “the constitution is not a suicide pact”.

    Go ahead and go that way. I will not go there with you. I’ll take the Constitution every single time, every day, every hour of every day, in every situation over ceding power to guys like Trump and every other propaganda-spewing scare-monger out there, promising me safety in exchange for the relinquishing of just a few of my freedoms.

    Every good authoritarian needs an Emmanuel Goldstein. For the modern Trump-right, it’s immigrants and refugees.

    “Ignoring the FBI and other officials have stated that reliable vetting is impossible”

    Then a fact-based case needs to be made to shut off all immigration from specific countries. I am of course open to non-propaganda facts. My aversion to Trump’s EO has mainly been the way he rolled it out and the faulty assumption that it had to be instantaneous because we – I suppose – don’t have any vetting currently. This is demonstrably false. You can’t just waltz in our country in one week because this EO had a stay put on it.

    I’m not against facts. I am really against propaganda.

    “you also ignore the statistics that show that succeeding generations of Muslim immigrants radicalize in ever greater percentages as Muslim percentage of population increases.”

    Right. You know another word for “succeeding generations of Muslim immigrants”? American Citizens.

    I’m not diminishing the problems of radical Islamic terror. But I am very much against the calls to subvert our constitutional system. We currently have a president who, based upon his tweets and statements and actions, may not even understand our tripartite system.

    If an American Citizen is planning a terror attack, there are ways of dealing with that, and we should deal with them vigorously along constitutional lines and within constitutional boundaries. But you can’t deport them back where they came from or anything like that. They are from here, just as much as you are. They may have a different religion and skin tone, but they are as American as you are. They have the same rights as you.

    If you want to slow or even stop muslim immigration, we have a system of checks and balances and legislation and this should be vigorously engaged if the situation is indeed dire. I’m good with that.

    I admit I don’t know precisely what you’re suggesting, and I apologize if I’ve mischaracterized it, but if it’s along the lines of denying fellow Americans their rights because they *might* be dangerous, I’m not your ally.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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