Day: February 10, 2017

AP FACT CHECK: Trump seems in denial about Gorsuch’s jabs

WASHINGTON — Supreme Court nominees don’t often bite the hand that picks them and President Donald Trump is having trouble accepting the fact that his hand was bitten.

Trump on Thursday disputed what at least three senators and a Republican operative have said — that Judge Neil Gorsuch voiced complaints about the president’s recent attacks on the judiciary during the nominee’s round of meetings on Capitol Hill.

Trump’s missive came in a reality-bending tweetstorm about a variety of topics. Here’s a selection:

TRUMP: “Sen. Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie), now misrepresents what Judge Gorsuch told him?” In a lunch with senators later, Trump said of Gorsuch: “His comments were misrepresented.”

THE FACTS: Blumenthal, a Democrat from Connecticut who falsely claimed in years past that he had served in Vietnam, offered an account of his meeting with Gorsuch that was corroborated by Ron Bonjean, a Republican strategist serving as communications director for the team that is working to get Gorsuch confirmed by the Senate.

The senator said Gorsuch told him it was “disheartening” and “demoralizing” to see Trump disparage the judge who temporarily blocked the president’s restrictions on visitors from seven mainly Muslim countries and on refugees. Trump has called U.S. District Judge James Robart a “so-called judge” and accused the judiciary of being political. Robart’s decision was upheld Thursday in a unanimous decision by an appeals court panel that includes a Republican appointee.

A Republican senator said Gorsuch also objected to Trump’s comments about Robart during their meeting.

“He got pretty passionate about him, about it,” Sen. Ben Sasse of Nebraska told MSNBC on Thursday. “I asked him about the ‘so-called judges’ comment, because we don’t have so-called judges or so-called presidents or so-called senators, and this was a guy who kind of welled up with some energy and he said any attack on any of — I think his term to me was, brothers or sisters of the robe — is an attack on all judges, and he believes in an independent judiciary.”

The Senate’s top Democrat, Chuck Schumer of New York, also said Gorsuch told him he was “disheartened” by Trump’s insult.

Former GOP Sen. Kelly Ayotte, who is helping to usher Gorsuch through the Senate, said in a statement released by the White House that the nominee “made clear that he was not referring to any specific case,” but “finds any criticism of a judge’s integrity and independence disheartening and demoralizing.” Even if Gorsuch did not name Trump in some of his exchanges with senators, however, it’s clear that judicial integrity only came up because Trump had attacked it.

Blumenthal told AP that Ayotte and White House staff members were in the room during his conversation with Gorsuch, that “there’s no question that he said that President Trump’s attacks on the judiciary are demoralizing and disheartening” and that the nominee added: “You can repeat that. You can quote me.”


Spicer: Trump has ‘no regrets’ about Gorsuch comments

Reporters repeatedly asked White House press secretary Sean Spicer about President Trump’s comments on Supreme Court nominee Neil Gorsuch’s comments, Feb. 9. (Reuters)

TRUMP: “It is a disgrace that my full Cabinet is still not in place, the longest such delay in the history of our country. Obstruction by Democrats!”

THE FACTS: That’s a premature judgment; it’s only February and several other recent presidents did not have their full Cabinets seated this soon. Barack Obama did not have all his Cabinet vacancies filled until late April 2009, for example, or Bill Clinton until mid-March 1993.

Looking at the far broader range of people throughout government who must be confirmed by the Senate, it’s true that the process has lagged this time. Attorney General Jeff Sessions this week became the eighth member of Trump’s administration to be confirmed; at this point eight years ago Obama had 23 officials confirmed, including department heads and deputies.

Democratic resistance is partly responsible. So is the fact that Trump has been slower than his predecessor in submitting vetting information and paperwork for his nominees, even though he was unusually fast in putting the names of his Cabinet picks into play.

As for his accusation of Democratic obstructionism, the opposition party can cause some procedural delays, and has done so. But obstructionism isn’t what it used to be. Unlike Obama, Trump only needs a simple majority to confirm his executive-office nominees, thanks to a change in rules instituted by Democrats when they controlled the Senate in 2013. And Trump has a Republican-controlled Senate to push his nominees through.


TRUMP: “Chris Cuomo, in his interview with Sen. Blumenthal, never asked him about his long-term lie about his brave ‘service’ in Vietnam. FAKE NEWS!”

THE FACTS: Not so. Cuomo, a CNN host, brought up that issue upfront with Blumenthal on Thursday. Cuomo asked him about Trump’s belief that the senator has no credibility “because you misrepresented your military record in the past.” Blumenthal did not answer the question, but went on to talk about his meeting with Judge Gorsuch.

During Blumenthal’s Senate campaign in 2010, The New York Times reported on multiple occasions when he falsely claimed he had served in Vietnam during the war. He joined the Marine Reserve but never served in Vietnam. Blumenthal told AP on Thursday: “I’ve been in public life for quite a while. Anyone who is interested can go back over it.”


Presidential Executive Order on Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers


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By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Policy.  It shall be the policy of the executive branch to:

(a)  enforce all Federal laws in order to enhance the protection and safety of Federal, State, tribal, and local law enforcement officers, and thereby all Americans;

(b)  develop strategies, in a process led by the Department of Justice (Department) and within the boundaries of the Constitution and existing Federal laws, to further enhance the protection and safety of Federal, State, tribal, and local law enforcement officers; and

(c)  pursue appropriate legislation, consistent with the Constitution’s regime of limited and enumerated Federal powers, that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.

Sec. 2.  Implementation.  In furtherance of the policy set forth in section 1 of this order, the Attorney General shall:

(a)  develop a strategy for the Department’s use of existing Federal laws to prosecute individuals who commit or attempt to commit crimes of violence against Federal, State, tribal, and local law enforcement officers;

(b)  coordinate with State, tribal, and local governments, and with law enforcement agencies at all levels, including other Federal agencies, in prosecuting crimes of violence against Federal, State, tribal, and local law enforcement officers in order to advance adequate multi-jurisdiction prosecution efforts;

(c)  review existing Federal laws to determine whether those laws are adequate to address the protection and safety of Federal, State, tribal, and local law enforcement officers;

(d)  following that review, and in coordination with other Federal agencies, as appropriate, make recommendations to the President for legislation to address the protection and safety of Federal, State, tribal, and local law enforcement officers, including, if warranted, legislation defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence against Federal, State, tribal, and local law enforcement officers, as well as for related crimes;

(e)  coordinate with other Federal agencies to develop an executive branch strategy to prevent violence against Federal, State, tribal, and local law enforcement officers;

(f)  thoroughly evaluate all grant funding programs currently administered by the Department to determine the extent to which its grant funding supports and protects Federal, State, tribal, and local law enforcement officers; and

(g)  recommend to the President any changes to grant funding, based on the evaluation required by subsection (f) of this section, including recommendations for legislation, as appropriate, to adequately support and protect Federal, State, tribal, and local law enforcement officers.

Sec. 3.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.


February 9, 2017

Exclusive – Trump border ‘wall’ to cost $21.6 billion, take 3.5 years to build: internal report

President Donald Trump’s “wall” along the U.S.-Mexico border would be a series of fences and walls that would cost as much as $21.6 billion, and take more than three years to construct, based on a U.S. Department of Homeland Security internal report seen by Reuters on Thursday.

The report’s estimated price-tag is much higher than a $12-billion figure cited by Trump in his campaign and estimates as high as $15 billion from Republican House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.

The report is expected to be presented to Department of Homeland Security (DHS) Secretary John Kelly in coming days, although the administration will not necessarily take actions it recommends.

The plan lays out what it would take to seal the border in three phases of construction of fences and walls covering just over 1,250 miles (2,000 km) by the end of 2020.

With 654 miles (1,046 km) of the border already fortified, the new construction would extend almost the length of the entire border.

Many cost estimates and timelines have been floated since Trump campaigned on the promise of building a wall. The report seen by Reuters is the work of a group commissioned by Kelly as a final step before moving forward with requesting U.S. taxpayer funds from Congress and getting started on construction.

A DHS spokeswoman said the department does “not comment on or confirm the potential existence of pre-decisional, deliberative documents.”

A White House spokeswoman said it would be “premature” to comment on a report that has not officially been presented to the president.

The report said the first phase would be the smallest, targeting sections covering 26 miles (42 km) near San Diego, California; El Paso, Texas; and in Texas’s Rio Grande Valley.

The report assumes DHS would get funding from Congress by April or May, giving the department sufficient time to secure contractors and begin construction by September. Trump has said Congress should fund the wall upfront, but that Mexico will reimburse U.S. taxpayers. Mexico has said it will not pay.

Several U.S. congressional delegations are visiting the border this month to assess funding needs, according to several people familiar with the travel plans.

The report shows the U.S. government has begun seeking waivers to address environmental laws on building in some areas. It also shows the government has begun working with existing contractors and planning steel purchases for the project.

Trump told law enforcement officials on Wednesday, “The wall is getting designed right now.”

The report accounted for the time and cost of acquiring private land, one reason for its steep price increase compared to estimates from Trump and members of Congress.

Bernstein Research, an investment research group that tracks material costs, has said that uncertainties around the project could drive its cost up to as much as $25 billion.

The second phase of construction proposed in the report would cover 151 miles (242 km) of border in and around the Rio Grande Valley; Laredo, Texas; Tucson, Arizona; El Paso, Texas and Big Bend, Texas. The third phase would cover an unspecified 1,080 miles (1,728 km), essentially sealing off the entire U.S.-Mexico border.


The report lays out costs to cover the border with barriers, but funding constraints and legal battles are likely to place limits on those plans.

It also does not account for major physical barriers, like mountains, in areas where it would not be feasible to build.

A source familiar with the plans said DHS may have to go to court to seek eminent domain in order to acquire some of the private land needed to cover the final and most ambitious phase.

The first phase, estimated to cost only $360 million, could be a relatively easy way for Trump to satisfy supporters eager to see him make good on his campaign promises to limit illegal migration. But the rest of the construction will be markedly more expensive, covering a much larger stretch of land, much of it privately owned or inaccessible by road.

In addition to seeking eminent domain and environmental waivers, the U.S. government would also have to meet the requirements of the International Boundary and Water Commission, a U.S.-Mexico pact over shared waters. The report estimated that agreement alone could bring the cost from $11 million per mile to $15 million per mile in one area.

Immigration arrests in L.A. spark fear, outrage, but officials say they are routine


Arrests made by federal immigration officials in Southern California this week have heightened anxiety about a promised crackdown by President Trump on people in this country illegally.

The arrests sparked a protest in downtown Los Angeles on Thursday evening, with immigration advocates claiming that about 100 people had been taken into custody. But immigration officials disputed those numbers and said the arrests were part of routine activities, not tied to any new crackdown.

The situation highlighted fear among many immigrants about Trump’s vow to deport those here illegally. Los Angeles and Orange counties are home to 1 million immigrants living without proper papers, according to an analysis released Thursday by the Pew Research Center.

Some politicians said they were demanding answers from federal authorities about the arrests. Meanwhile, local police were fighting concerns that they were somehow involved in new immigration actions. Many law enforcement agencies, including the Los Angeles Police Department, have vowed not to take part in the mass deportations Trump and his supporters have promised.

The Pomona Police Department put out an alert Thursday night warning of social media hoaxes claiming the agency was taking part in immigration checkpoints. Similar rumors circulated last week as well. Police officials decried them as “fake news.”

“There is information that is out there that is wrong,” said Los Angeles Deputy Police Chief Bob Green, adding that his department would not participate in any federal immigration sweeps. “We are working hard with the immigrant communities to dispel fears.”

Virginia Kice, a spokeswoman for Immigration and Customs Enforcement, said the arrests were not part of a new and more aggressive mission the agency had adopted in light of the president’s stance on deportations.

In a statement, she said any arrests were part of the agency’s “routine” enforcement activities.

“Our operations are targeted and lead driven, prioritizing individuals who pose a risk to our communities. Examples would include known street gang members, child sex offenders, and deportable foreign nationals with significant drug trafficking convictions,” Kice wrote. “To that end, ICE’s routine immigration enforcement actions are ongoing and we make arrests every day.”

Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles, said 100 people were detained, 60 of them Mexican nationals.

Salas said when she and other CHIRLA members arrived at a downtown L.A. detention center Thursday afternoon, they saw five white vans and one bus filled with people who they believed had been nabbed in the actions. They said they have not been able to get any information about those detained.

Salas said one man was at home when there was a knock on his door. When the man opened the door, he was met by an ICE agent who asked him to provide identification. When he couldn’t do so, he was detained, she said. Another man was detained at his work at a Target store in the San Fernando Valley, she said.

“They say it’s routine, but we don’t believe it was a routine operation,” Salas said.

An ICE official who was not authorized to discuss the matter publicly and requested anonymity said the claims that ICE officers made 100 arrests Thursday were “grossly exaggerated.”

Green said Thursday that the department knew of no ICE raids going on in the San Fernando Valley.

The only ICE activity, he said, is the normal execution of deportation orders that is nothing out of the ordinary.

California Senate President Pro Tem Kevin de León (D-Los Angeles) said in a statement that he’s asked “federal officials to disclose how many children, men, and women they have detained; what the processing time will be; what the rationale is for their detention; and I asked that everyone be offered access to an attorney.”

At the federal detention center off Aliso Street downtown on Thursday night, dozens of people walked in a circle, holding signs that read: “Stop separating families” and “ICE out of L.A.”

At one point, a federal judge tried to drive down Aliso Street to get onto the 101 Freeway, but demonstrators had blocked the street. The judge was eventually able to get to the freeway.

Assemblyman Miguel Santiago (D-Los Angeles) attended the protest. He said the issue is a personal one for him. Santiago’s father was undocumented when he immigrated to the United States from Mexico as a teen.

“He came here to create a better life for my brother and I once we were born,” he said. “He was a hardworking guy. These people are no different. This is absolutely the point that we need to stand up for immigrant rights.”

After appeals court ruling, Trump has two unappealing options.

After appeals court ruling, Trump has two unappealing options.
© Getty

The Ninth Circuit, the appeals court for the western United States, refused to lift the temporary restraining order (TRO), which prevents the government from implementing President Trump’s immigration executive order. It was a short trip to the Ninth Circuit, and the lawyers for the government leave it bruised, though not beaten.

Like most court decisions, the Ninth Circuit’s opinion has exciting bits and boring bits, but the boring bits are often the most important. Let’s discuss the exciting part first: Who will likely win?

In considering a TRO, the law requires the court to guess which party will prevail. This is called “likelihood of success.”

The Ninth Circuit held that the plaintiffs were likely to win on the claim that the executive order deprives persons “of life, liberty, or property, without due process of law.” Based on prior Supreme Court cases, the Ninth Circuit held that the Due Process Clause applies broadly, not just to citizens: “(A)liens who are in the United States unlawfully . . . have due process rights as well.”

The plaintiffs also claim that the executive order amounts to religious discrimination. The Ninth Circuit “reserve(d) consideration” on this point. Nevertheless, the court observed that the trial court could consider evidence beyond the language in the executive order itself.

This is crucial, because plaintiffs’ case hinges on numerous statements by President Trump and his advisors that they intended to implement a ban on Muslims.

Now to the boring, but crucial parts. The government argued that the courts should not even hear this case, based on the doctrines of standing and political questions. Let’s consider them in turn.

The Constitution limits courts to hearing “cases” or “controversies.” A potential plaintiff can’t just sue because she is angry. Courts can only get involved if the plaintiff has suffered some concrete and individual harm. The courts call this “standing.”

The plaintiffs, the states of Washington and Minnesota, argued that their public universities were harmed because of the executive order’s effect on international faculty and students from the seven designated nations. The Ninth Circuit agreed.

The Ninth Circuit also agreed that the courts had the power to review the executive order. Some matters — for example, strategic decisions in a war — are essentially unreviewable by a court. These matters are “political questions,” meaning that they are left solely to the elected branches of the U.S. government.

The U.S. argued that immigration is one of those matters. This was always an uphill battle for the government, because the courts have, in fact, reviewed important immigration matters before, including in INS v. Chadha, taught in most constitutional law classes.

The Trump administration has two additional reasons to be worried about this decision.

First, it will likely lose the next round of litigation, concerning the preliminary injunction (a court order made in the early stages of a lawsuit which prohibits the parties from doing an act in order to preserve the status quo).

Ordinarily TROs last at most two weeks and are not reviewable by a higher court such as the Ninth Circuit. There is an exception when a TRO operates essentially like a preliminary injunction, which can last as long as the case itself. The only reason why the Ninth Circuit reviewed the TRO was because “the district court’s order possesses the qualities of an appealable preliminary injunction.”

Why is this important? The trial court in this case has set a schedule to hear the plaintiffs’ request for a preliminary injunction. If the trial court grants that preliminary injunction, it may be safe in the appeals court, since the Ninth Circuit has already treated the prior TRO as if it were a preliminary injunction.

Second, the Trump administration may be saddled with these Ninth Circuit judges in the future. On a later appeal, a party can request the same judges as heard the first appeal. The judges can decide whether or not to grant that request, but if you were a judge on this case, wouldn’t you want to stay on it?

What happens next? The government can ask the Supreme Court to review the Ninth Circuit decision or, before that, have a larger, en banc panel of the Ninth Circuit consider the case.

It is very unlikely that the government will seek en banc review, and even less likely that the Ninth Circuit would grant it. It is impossible to predict what the Supreme Court will do, but in recent, controversial matters, the court has proceeded slowly. It was more than six years after the establishment of the Guantanamo Bay detention camps that the Supreme Court ruled on the habeas corpus rights of persons detained there.

The most likely result of the past few days’ legal maneuvering is that the case returns to the trial court for further, less rushed, proceedings. And when the parties appear again before Judge Robart, the plaintiffs will be further ahead than they were six days ago.

William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.

FBI investigating anti-Jewish email to University of Michigan students

(JTA) — The FBI is investigating a series of mass emails sent to students at the University of Michigan threatening violence against Jews and blacks.

Three emails were sent Tuesday night to students in the university’s computer science and engineering program, according to news reports.

One of the emails, with the subject line “Jewish Student Diversity,” read: “Hi you f***ing filthy jews, I just wanted to say the SS will rise again and kill all of your filthy souls. Die in a pit of eternal fire! Sincerely, Dr. Alex Halderman.”

J. Alex Halderman, a professor at the university, denied sending the emails and told the campus newspaper that it takes little sophistication to make it seem like the emails were sent by him. A statement from the university on Wednesday confirmed that the emails had been forged.

The other two emails, written under the subject line “African American Student Diversity,” threatened to kill black students and saluted the KKK and Donald Trump.

University of Michigan President Mark Schlissel condemned the emails in a tweet early Wednesday morning.

The Anti-Defamation League also denounced the messages.

“The nature of the emails sent are deeply troubling to African-American and Jewish students as well as the campus community at large,” Heidi Budaj, ADL Detroit Regional Director, said in a statement. “These hateful messages strike at the very core values of inclusion and diversity upon which the University is founded and have the potential to really affect the tenor on campus.”

In a statement Wednesday, the university said campus police had increased patrols near the engineering school and that a joint criminal investigation had been launched with the FBI.