February 14th, 2017

Facts, judges, and lawyers

One of the many strange details of the recent rulings on the Trump immigration EO was this:

[Judge James Robart] asked a Justice Department lawyer how many arrests of foreign nationals from the countries have occurred since 9/11. When the lawyer said she didn’t know, Robart answered his own question: “Let me tell, you, the answer to that is none, as best I can tell. You’re here arguing on behalf of someone that says we have to protect the United States from these individuals coming from these countries and there’s no support for that.”

But “as best I can tell” wasn’t good enough. Not good enough on the part of the judge, who should not be relying on his own ignorance in making a ruling, particularly when the facts were not the least bit difficult to come by and conflicted with his statement. And not good enough on the part of the government lawyer, whose ignorance might be considered even more shocking because the lawyer is charged with learning things that might be needed in a trial or hearing. Wouldn’t the lawyer be the person who should have realized it was her duty to have the facts on hand to provide the “support for that,” if questioned?

In the case of the Trump EO, however, the 9th Circuit (which is the federal appeals court to which the case went after Judge Robart ruled on it) had this to say on the matter of terrorists from the 7 countries:

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.

Let me try to translate that as best I can. The judges need to take into consideration evidence presented by counsel, not things they read in the newspaper. Evidence is readily available as to the danger the 7 countries represent—the widespread terrorism and terrorist-training there, the fact that they are failed states and vetting people from them is very difficult, the number of arrests of people from those countries who were plotting terrorism or acts related to it (as well as some terrorists from those countries who committed such acts but were shot and killed and therefore never arrested), the number of terrorists in Western European countries who were from the seven countries, and the number of people who had traveled to those countries recently for terrorist training and then committed or plotted such acts. But if such easily-obtainable evidence is not presented to the courts, it is as though it does not exist for the purposes of the courts. In addition, because the government’s position is that the court had no right to question the decision of the executive branch on this matter anyway (“the Government has taken the position that we must not review its decision at all”), any such evidence need not be taken into account.

What’s the remedy for the willful ignoring of the facts? Is there one? Should there be one? After all, we don’t want judges reviewing the pros and cons of each and every executive decision about immigration and security and whether the decision was justified, do we? That’s not a judicial function.

25 Responses to “Facts, judges, and lawyers”

  1. Cornhead Says:

    The whole point of the EO is that the seven countries are failed states and we can’t reliably figure out who these people really are.

    The travel ban is about the future; not the past.

  2. Assistant Village Idiot Says:

    I agree with Cornhead, but the attorney should be the one to say that, not commenters here. And if pressed, should be able to report the number of arrests and convictions, plus add interesting snippets like “And that doesn’t include that guy with the machete a coupla months ago at that college in Ohio.” Courts are often theater, and you have to both know your lines and be able to improvise.

  3. Esther Says:

    If faulty recollection of facts are regarded by the court as facts, are those actually facts. Or, alternate facts?

  4. parker Says:

    “That’s not a judicial function.”

    Thatt should not be a judicial function, but judges, particularly liberal judges, have political opinions that shape their judicial decisions.

  5. donkatsu Says:

    Judge Robart should be impeached and removed from office for misconduct. He introduced “evidence” on foreign policy matters at a hearing that was about specific matters of legal standing and damages.

    He was factually, and most likely intentionally misrepresenting the truth of the situation.

    This does not let the DoJ lawyers off they hook. As Neo notes, anyone could have found out in a few minutes approximately the number of arrests from these countries, how long these countries have been failed states, how many training camps are believed to exist in them, etc. That they offered no rebuttal to Judge Robart’s lies leads me to believe that these attorneys, like the 9th Circuit judges, were looking forward to the applause and high fives as they entered whatever “victory party” they had planned for the aftermath of this travesty.

    As a friend with long experience in criminal law noted about these DoJ attorneys, “no one can be this bad by accident.”

    And unlike Michael Flynn none of them will suffer a moment’s inconvenience or financial hardship as a result.

  6. Frog Says:

    I have the temerity to suggest the “government lawyer” who appeared before Judge Robart may be a Democrat, appointed to his post by a member of the Obama Clan still running the DOJ, exempt from being fired at will. Thus I posit he may have intentionally done a poor job, an act of anti-Trump legal sabotage, since Sessions was not then at the helm and could not vet and select the litigator.
    We saw the same sh*t from Sally Yates, the Acting AG, who did get fired in consequence. The same Sally Yates who wrote a memo some weeks ago suggesting that Gen. Flynn might be vulnerable to Russian blackmail. The Flynn who today resigned as National Security Advisor over this flack.
    It strikes me the Dems got Trump to get rid of a solid asset as a result of all this; the stuff I have read yields no indictment of Flynn. He is described as aggressive, bull-headed, yes, but an excellent soldier who was previously in charge of the Defense Intelligence Agency.

    Trump and his team need to get better organized f-a-s-t now the key players have been confirmed. There are lots and lots of rats behind the arras.

  7. donkatsu Says:

    Frog,

    If you cross donkatsu with grenouille, do you get the equivalent of pork-fried frog’s legs?

  8. Ken Mitchell Says:

    In the 1939 Supreme Court case of “Miller vs US” that was the basis for most gun control law until quite recently, the Court ruled “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

    So, sawed-off shotguns were banned. HOWEVER, the use of sawed-off shotguns was COMMON KNOWLEDGE, that these were “trench guns” widely used in World War 1. So the 1939 court, (to use another military aphorism) “turned a blind eye” toward the use of sawed-off shotguns.

    The lesson is that when you get to the Supreme Court, you need to have specified EVERY fact in the case, including (if relevant) the color of the sky in that world.

  9. Geoffrey Britain Says:

    How deep and widespread is the malignancy?

  10. donkatsu Says:

    GB,

    That’s why they call it the Deep State.

  11. Liz Says:

    We shouldn’t forget those crimes which are classified as “workplace violence” – the Ft. Hood shooter as well as the OKC man who became a Muslim and then decided to cut off the head of a co-worker.

    Really, how many beheadings were there in the United States before they became a You Tube phenom?

    We really don’t have to import anyone from these countries – they already are influencing those who are here.

  12. Liz Says:

    A bit off topic, but related to several recent posts concerning “words”.

    I recently saw some articles about the Democrat Party wondering how they can improve “talking to” voters. All of the articles used the words “talk to”.

    Compare with a tweet from President Trump today…. “Great parent-teacher listening session this morning with ” VP Pence, DEd Secretary DeVos.

    https://twitter.com/realDonaldTrump/status/831599387906301952

    Notice the difference in words – talk to vs listening. Big difference!

  13. Oldflyer Says:

    Saw today that Bill Kristol said that he preferred the “deep state” to the Trump regime.
    Trump is truly in the swamp and up to his keister in alligators.
    He better get his team focused fast. They better be smart, ruthless and indefatigable; or they will be eaten alive.
    He might also call on the public (us) to help; not sure exactly how. But, there is a loose conspiracy trying to corrupt our democratic processes, and we have a large stake.

  14. neo-neocon Says:

    donkatsu:

    You know, you can’t just wave a magic wand and impeach and convict and remove a judge. See this.

  15. donkatsu Says:

    Neo,
    I know that, just wishful thinking. OTOH, they can come back like THIS: https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm

    You impeach them, convict them, and then we are forced to listen to them for another 30 years, but only if they are Dems.

  16. neo-neocon Says:

    Oldflyer:

    Yes, I saw that tweet of Kristol’s (Ace wrote about it). Kristol actually wrote “Trump state,” by the way, not “Trump regime.” Since he didn’t specify what he meant by “Trump state,” it’s hard to know if there’s any difference.

    Kristol always seemed like a pretty reasonable, measured person to me, prior to the Trump business. I didn’t always agree with him, but I often did, and I never thought he went off the deep end on anything. With the advent of Trump he seemed to become more extreme (and in some ways impractical, such as his thinking David French could be a presidential candidate). But until today I never saw anything from Kristol that seemed to go against his own basic principles. But that tweet seemed to do so.

    It’s partly Twitter I think, because Twitter encourages people to be brief, snarky, and extreme. That’s not an excuse of course, but it still is a fact. In a column, Kristol would certainly explain what he meant. In a tweet, he doesn’t, and he goes for the catchy phrase—deep state vs. Trump state. What does it mean? Does it mean that he prefers behind-the-scene machinations from shadowy, unnamed, unelected powerful movers and shakers, with access to information gained by tapping phones and the like, spilling information as they please to friendly MSM reporters with an agenda in order to bring down someone they don’t like and he doesn’t like, someone who was elected by the American people? He prefers that to Trump being president? Is a Trump presidency a “Trump state”? Or by “Trump state” does he mean the prospect of a Trump dictatorship? Does he think Trump has become a dictator already? Does he think he will inevitably become one, and if so why?

  17. OM Says:

    Neo:

    Has Kristol fallen into Trump Derangement Syndrome? If so he has lots of company, but mostly on the left. Critics of Trump at RedState.com haven’t gone “Kristol.” Like OldFlyer said, Trump’s team is on the defensive, masks are off regarding the seriousness of the opposition in the Deep State and their allies, the media. There was an article in Warontherocks.com concening the “War of the Generals;” the 4-stars (Mathis and another) vs NSC (Kelley and another). That would be internal squabbling compared to POTUS vs the Deep Staters.

  18. neo-neocon Says:

    OM:

    I don’t know the answer about what’s going on with Kristol. Wish I knew. All I know is he doesn’t sound like himself, or at least the self with which I’m familiar.

  19. SLR Says:

    I think the gov lawyer may have been thrown for a loop. The judge wanted to debate making foreign policy. Not the law.

  20. parker Says:

    Conspiracy theories are difficult to believe, but coordination between the dnc, msm, and bho holdovers in the bureaucracy is easy to believe.

  21. AesopFan Says:

    SLR Says:
    February 14th, 2017 at 10:42 pm
    I think the gov lawyer may have been thrown for a loop. The judge wanted to debate making foreign policy. Not the law.
    * * *
    Kind of like Romney discovering that Candy Crowley was a player for the Dems, rather than an impartial moderator.
    However, every lawyer I know about prepares for everything the judge MIGHT throw out, and that was an obvious question in this case.

    IIRC, the lawyer here was the third-string, the upper echelon having recused themselves for various reasons, and late in the game (it was a short game to start with); maybe he just didn’t have time to prepare adequately.
    Not excusing the failure, but things happen like that all the time.

  22. TommyJay Says:

    I just finished jury duty on a trial with 12 lower level criminal counts. We (the jury) almost didn’t convict on 1 or 2 counts because we asked “Where was the fingerprint evidence?” Then there was the count where we did acquit because the prosecution presented a highly detailed photo that undercut the prosecution’s case. So yes, there can be too much evidence or too little.

    The whole point (assuming there is any legitimate legal justification) of the hearings are: does Washington state have standing, and is there a constitutionality question (e.g. religion establishment or disestablishment)?

    Judge Robart has absolutely no authority to assume or weigh Presidential executive decisions. He is essentially saying “I don’t like the President’s national security decisions, so I’m going to decide for the President for awhile.”

    I hope Trump didn’t use an attorney with questionable loyalties, and maybe the attorney should have presented a long laundry list of refugee crimes, but I do think the latter issue is a grandmaster level choice.

  23. Frog Says:

    Further to our concern about the Deep State is this, as it relates to Gen. Flynn’s forced resignation:
    http://freebeacon.com/national-security/former-obama-officials-loyalists-waged-campaign-oust-flynn/?utm_source=Freedom+Mail&utm_campaign=d5949a659c-EMAIL_CAMPAIGN_2017_02_14&utm_medium=email&utm_term=0_b5e6e0e9ea-d5949a659c-46066129

    This is a domestic security crisis of the first magnitude, radical Democrats who have seized the reins of power from within, cannot be identified or fired because of Civil Service rules promulgated in the late 1800s, and who work to undermine the new Administration’s positions…as I suggested the “government lawyer” pleading the defense of Trump’s ExecOrder did by being intentionally underprepared, phonily ignorant.

    The Deep State is our Death Star.

  24. AMartel Says:

    Perhaps the government lawyers here were not privy to classified information or not willing to convey that information in open court to the illustrious judicial foreign policy experts (sacasm quotes implied) at the Washington State District Court and the 9th Circus.

    Jeez. Us.

  25. Big Maq Says:

    “What’s the remedy for the willful ignoring of the facts? Is there one? Should there be one?” – Neo

    Seems to me, that is why we have the option to go to SCOTUS.

    But, even then, no guarantee.

    We had a Civil War over “interpretation” of laws, and about 100 years of judiciary that ignored what was right, only to go overboard the other way in some cases.

    We have an opportunity to balance out the lower courts and keep a conservative majority in SCOTUS.

    About the best possible outcome in this regard.

About Me

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.
Read More >>






Monthly Archives



Blogroll

Ace (bold)
AmericanDigest (writer’s digest)
AmericanThinker (thought full)
Anchoress (first things first)
AnnAlthouse (more than law)
AtlasShrugs (fearless)
AugeanStables (historian’s task)
Baldilocks (outspoken)
Barcepundit (theBrainInSpain)
Beldar (Texas lawman)
BelmontClub (deep thoughts)
Betsy’sPage (teach)
Bookworm (writingReader)
Breitbart (big)
ChicagoBoyz (boyz will be)
Contentions (CommentaryBlog)
DanielInVenezuela (against tyranny)
DeanEsmay (conservative liberal)
Donklephant (political chimera)
Dr.Helen (rights of man)
Dr.Sanity (thinking shrink)
DreamsToLightening (Asher)
EdDriscoll (market liberal)
Fausta’sBlog (opinionated)
GayPatriot (self-explanatory)
HadEnoughTherapy? (yep)
HotAir (a roomful)
InFromTheCold (once a spook)
InstaPundit (the hub)
JawaReport (the doctor is Rusty)
LegalInsurrection (law prof)
RedState (conservative)
Maggie’sFarm (centrist commune)
MelaniePhillips (formidable)
MerylYourish (centrist)
MichaelTotten (globetrotter)
MichaelYon (War Zones)
Michelle Malkin (clarion pen)
Michelle Obama's Mirror (reflections)
MudvilleGazette (milblog central)
NoPasaran! (behind French facade)
NormanGeras (principled leftist)
OneCosmos (Gagdad Bob’s blog)
PJMedia (comprehensive)
PointOfNoReturn (Jewish refugees)
Powerline (foursight)
ProteinWisdom (wiseguy)
QandO (neolibertarian)
RachelLucas (in Italy)
RogerL.Simon (PJ guy)
SecondDraft (be the judge)
SeekerBlog (inquiring minds)
SisterToldjah (she said)
Sisu (commentary plus cats)
Spengler (Goldman)
TheDoctorIsIn (indeed)
Tigerhawk (eclectic talk)
VictorDavisHanson (prof)
Vodkapundit (drinker-thinker)
Volokh (lawblog)
Zombie (alive)

Regent Badge