Here’s a simple rule for lawyers and clients: When you’re in the middle of litigation (or you know litigation is imminent), act in a way that makes it easier for a court to rule in your favor. You can’t guarantee an outcome. You can’t control the judge. But you can — in theory — control yourselves, and that means preparing thoroughly, presenting the best possible evidence for your case, and behaving professionally.
Yesterday’s oral argument in the Ninth Circuit Court of Appeals was a bracing reminder of the high cost of chaos. The Trump administration has taken an extraordinarily strong legal case, backed by statutory law that gives the president the power to suspend or restrict the entry of “any aliens or of any class of aliens” when he finds that their entry would be “detrimental to the interests of the United States,” and turned it into a legal dumpster fire. He’s now reduced to hoping that the judges will cut through the fog of his own administration’s incompetence and bail out the order in spite of his words and actions.
How did he hurt his case? Let us count the ways. First, recall his absurd campaign rhetoric about Muslim bans (and Rudy Giuliani’s follow-up that Trump tasked him with implementing the ban “legally”). Both raised concerns that he wasn’t so much making the legally required finding that entry from the seven problematic countries was detrimental to U.S. interests as he was using the Obama administration’s actions as a pretext to simply ban as many Muslims as he felt he lawfully could.
Next, by failing to lay out chapter and verse the threat from the seven identified countries, the administration was reduced to relying on an Obama-era designation that justified security measures short of a temporary travel ban. At a stunning moment in the oral argument, the court asked the DOJ lawyer arguing for the ban to provide a factual basis for the order beyond merely arguing that the Obama administration had singled out those countries. He couldn’t do so. There was no additional record evidence supporting the president’s finding.
The Trump administration should have issued specific and factually detailed findings demonstrating why the Obama administration’s lesser security measures were problematic enough to justify a short pause in entry. This would not be difficult (except, perhaps, for the case of Iraq, where the security climate has steadily improved). The identified countries either have been ripped to shreds by jihadist violence or are actual terror-exporting enemies of the United States.
Courts (especially courts composed of potentially hostile and skeptical judges) are notoriously unimpressed with governmental findings that are largely unsupported by evidence in the record. Given the extraordinary level of jihadist violence, the crumbling or nonexistent governmental infrastructures in many of these countries, the escalating threat environment at home and abroad, and the known intentions and capacities of our terrorist enemies, it should be easy to provide a factual basis for a 90-day pause.
Third, the chaos and cruelty of the implementation undermined the legal argument. Is the situation so urgent and actionable that it should be applied to green-card holders, in spite of the multiple layers of vetting they’ve already endured? What about its application to translators or interpreters who’ve also not only been vetted but actually risked their lives alongside American soldiers? By taking one position, then contradicting itself days (or even hours) later, the administration again sent a signal to skeptical judges that it was operating less through true national-security findings and more out of discriminatory animus.
If you were a litigant in an important case — say, for custody of your child — would you think it wise to insult the judge?
Finally, Trump’s comments about the judges in the case are singularly unhelpful. Yes, I know that judges are supposed to be above the fray, deciding cases based entirely on their understanding of the facts and the law. However, wise lawyers and clients also understand that judges are human, and it’s just silly to give human beings a reason to want to rule against you. This is basic common sense. If you were a litigant in an important case — say, for custody of your child — would you think it wise to insult the judge?
In spite of the administration’s actions, I still believe the executive order was lawful. The escalating domestic threat environment, combined with the experience of our allies overseas, demonstrates jihadists’ capabilities and intentions. Against the background of that threat, there is more than enough evidence to support temporary pauses while a new administration determines whether to adjust screening procedures and security policies.
At the same time, however, Trump and his close advisers have done everything in their power to lose this case. Irresponsible rhetoric, poor drafting, and chaotic implementation have left a strong legal hand far weaker than it needed to be. It’s the responsibility of a leader to set up his subordinates for success, to take the actions that make victory more likely. In this case, however, Trump and his advisers set up his lawyers for failure. If the DOJ ultimately wins, it will be no thanks to an administration that has undercut it at every turn.