8 Feb

Fireworks as appeals court judges talk Trump travel ban

Posted in: Our Blog

Judges
This combination of recent pictures created on February 07, 2017 shows (from left) Judge Richard Clifton, Judge William Canby and judge Michelle Friedland from the 9th Circuit Court of Appeals in San Francisco. The three federal judges heard arguments on Tuesday in the challenge to Donald Trump’s travel ban. (GETTY IMAGES)

On Tuesday night, two top American lawyers took quite the beating.

The first up was August Flentje, special counsel to President Donald Trump.

Flentje had precisely 30 minutes to persuade three very hostile judges of the 9th Circuit Court of Appeal, by telephone yet, that his client should be able to make executive orders without the interference of the courts.

It took not even one second for the viper of the judicial trio, Judge Michelle T. Friedland, to pounce. “Are you arguing that the president’s (executive order) is unreviewable?”
Understandably, the judge was quite spirited because that is precisely what she does for a living … review the legality of such matters.

Flentje was smart enough to assure the very agitated Obama-appointed judge that his client’s powers were, in fact, “subject to constitutional limitations”. His acknowledgement that not even The Donald could mess with the U.S. constitution probably saved him from an even worse judicial smackdown.

In the end, Flentje tried to salvage what he could of the uber-controversial Executive Order by arguing, quite rightly I think, that last Friday’s temporary restraining order by District Court Judge James Robart was overly broad in that it purported to apply to people who were not Americans, who were outside of the U.S., and who had no right whatsoever to any constitutional protections.

As a lawyer, I felt sorry for the poor guy who at one point was facing a barrage of questions from two very animated judges at the very same time. You could tell that the battered barrister just wanted to get off the phone as fast as possible and just go home. Near the end of his arguments the exasperated counsel simply offered “I’m not sure I’m convincing the court.”

Frankly, I didn’t think so either.

Next up for his 30-minute trouncing was the lawyer for the State of Washington, Noah Purcell. Believe me, he didn’t get off lightly either.

He started pretty well by stating the obvious – that it’s always the judicial role of the courts to supervise the executive branch with meaningful review. Fair enough, I say.

Then he told the court that the judicial stay should remain in place because the Executive Order “relied on discriminatory animus.” For those of you who don’t speak legalese, ’animus’ is Latin for ‘hostility … ‘ill-feeling’ … maybe even, ‘racism.’

That didn’t sit well with the good judge Richard R. Clifton, an appointee of Republican President George W. Bush. The Judge forcefully suggested to counsel that if the president was actually hostile to Muslims he would have banned all Muslims and not just the 15% of Muslims who live in the seven high-risk countries. The judge reminded Purcell that it wasn’t Trump who picked these seven countries but that it was a previous Congress which labelled them terrorist-rich nations. Purcell admitted that he actually “hadn’t done the math” and was in no position to disagree that 85% of all Muslims were unaffected by the order.

After precisely one hour of intense fireworks, the court adjourned and reserved its decision.

Don’t ask me what I think the outcome will be.

I am only certain of one thing.

The 9th Circuit Court of Appeal will not have the final say on this case.

Guidy Mamann is a partner at Mamann Sandaluk & Kingwell LLP

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