The Government’s Legal Position: Ineptitude of Sinister Design?

Several decades ago Alan Dershwitz tried in vain to teach Aardvark about criminal law. Watching him on TV so many years later, I am glad, I suppose, that his self-confidence and sense of certainty have not diminished with age. Of some it may be said, “Often in error but never in doubt.” Surely the latter part of that sentence, at least, applies with full force to the good professor.

I have posted before on the difficulty of reverse engineering the government legal team’s legal strategy in the immigration case. Some readers may feel I obsess, but in fact this is damned important stuff.

Dershowitz contends that (1) the Trump executive order as originally written was constitutional (under the lenient and deferential “rational basis” test) and that (2) when Trump’s lawyers eschewed the “rational basis” test for review, and opted instead to argue that the order is unreviewable by the courts, they exhibited incompetence.

To leap from the sublime to the ridiculous, Joe Scarborough has said much the same thing. He may say the say the same thing tomorrow morning, if he remembers what he said last week.

I, myself, have identified legal incompetence by the defense team as one plausible basis to explain their behavior.

But, writing on Sunday evening, February 12, I now believe that incompetence is not the best explanation. I believe the best explanation for the Trump team’s anomalous legal strategy is that Bannon and Miller are attempting to create a constitutional crisis.

I think they want to put Trump in a place where he thinks his manhood compels him to order those he commands to disobey a court order grounded in fundamental constitutional law.

Does Trump fully grasp what Bannon and Miller are up to?

Does he approve?

Will he step back from the precipice?

We shall see.

Que será será.

No Ninth Circuit Decision Today on Immigration

In The Ninth Circuit and President Trump’s Lies, Amy Davidson of the New Yorker does a good job of walking us throught the oral argument last night. I hope you tuned in.

Temporary restraining orders and preliminary injunctions are intended for circumstances where justice cannot wait for the courts to proceed in an orderly fashion to try the case and allow time for appeal.

Here, El Presidente has articulated a claimed pressing need for action, namely, that inadequate vetting procedures are letting in dangerous people.

To support this claim, you would need to point to some specific dangerous people who have passed through the filter. Failing that, you would at least articulate a coherent account of what vetting procedures are now being followed and why those procedures are (or plausibly might be) inadequate. Failing that, you would want to come up with some facts that can be made to look as if they support the claimed emergency.Failing even that, you would want to find someone whom you could present as an “expert” and have her opine that the procedures are inadequate.

Counsel for the government had nothing. He and his team couldn’t even make something up. It shows a striking failure of imagination.

We now learn there will be no decision today. Three thoughts.

  1. I previously remarked that the statutes and legal precedents under debate were not created on the assumption that the president would be a delusional, bigoted jerk.

    Courts have some legitimate leeway in reading the case law. With (at least) an extra day for consideration, the honorable court will have the opportunity to read even more presidential tweets that prove he is a bigoted, delusional jerk. This may provide invaluable help in interpreting the precedents supporting broad presidential leeway in foreign affairs and immigration.

  2. Given the increasingly loud presidential denunciations of their forthcoming decision, I expect the three judges are trying to agree on a common analysis. This may involve some compromise.
  3. The members of the panel are located respectively in Honolulu, Phoenix, and San Jose. Even in the internet age, it’s a little awkward to agree on a common text when they are in different places.

The Ayatollah’s Amicus Curiae Brief to the Ninth Circuit


From an official Iranian web site, not from The Onion, not from Aardvark:

We thank Trump for exposing the reality of the U.S.: Ayatollah Khamenei

His Eminence stated: “We actually thank this new president [Trump]! We thank him, because he made it easier for us to reveal the real face of the United States. What we have been saying, for over thirty years, about political, economic, moral, and social corruption within the U.S. ruling establishment, he came out and exposed during the election campaigns and after the elections. Now, with everything he is doing—handcuffing a child as young as 5 at an airport—he is showing the reality of American human rights.”

Signed, Love & Kisses,

The Ayatollah

Waiting for the Midnight Brief

As we await developments in Washington v. Trump, I watched the video of the oral argument before so-called Judge Robart on January 27. It lasts a little more than an hour. Though it deals with a variety of arcane legal issues, I highly commend it.

This, ladies and germs, is how to conduct a civilized debate. This is how to do justice. This is how to address grave matters of state and grave matters of conscience.

As I said, there is quite a lot of legal complexity. I won’t attempt to summarize all the issues, let alone do them justice. Nor should I be understood to downplay the importance of that which I do not summarize.

That said, it is of the first importance that the government cited no actual threats that would be forestalled by the order. It cited no arrests of terrorists from the seven countries mentioned in the order. Instead, the government took the position that it has no legal obligation to show that the order is rationally based. Instead, said the government, its only obligation is to show that the order is “facially legitimate”—i.e., that it purports to be based on facts that warrant the action taken, whether or not the stated facts are actual facts.

As counsel for the state of Washington observed, that means that a stated national security rationale trumps any judicial review of an executive order.

Can anyone think of a more perfect legal underpinning for a fascist state?

Finally, confronted with an apparent conflict between two provisions of the Immigration and Naturalization Act with respect to whether discrimination on the basis of national origin is or is not permitted, learned counsel for the government contended that such discrimination must surely be OK, for otherwise the president wouldn’t even be permitted to bar entry by persons from countries with which we are at war.

She seemed to think that was an exceptionally strong argument. She said it twice.

Her position, of course, would allow the president to bar Holocaust victims on the ground that they are German nationals.

Let the Clusterfucks Begin, and Let the Righteous Judges Jude Wisely


Trump’s immigration order created the first, but far from the last, unmitigated clusterfuck of his young presidency. In a stroke of genius, El Caudillo simultaneously

  • Caused grievous harm to a large number of people whose stories will resonate with the public
  • Bigly pissed off the billionaire class
  • Alarmed our allies
  • Gave aid and comfort to our enemies, and, just to add icing to the cake,
  • Violated the Constitution.

This is a signal achievement. Only a world historical figure like Donald Trump could have done it. As He put it so well in his convention speech, “I, alone, can fix it.”

You do not need Aardvark to tell you so, and he will not attempt to amplify. A good explanation of how things stand as of Sunday morning, January 29, may be found at Bloomberg Politics.

I would, however, like to direct your attention to the language of the emergency order issued last night in the Darweesh case by District Judge Donnelly.

The good judge’s decision should be read in context: when considering a pretrial injunction, a trial judge must consider the plaintiffs’ likelihood of proving their case at trial, the injury to plaintiffs if their request isn’t granted, and the injury to defendants if their request is granted.

It’s significant, in my view, that Judge Donnelly minced no words. As the first predicate for her order, she wrote,

The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the U nited States Constitution.

Other legal actions are under way across the country.

The system is under stress, but it is not yet broken.


Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment.

Deuteronomy 16:18


Politico calls the immigration clusterfuck President Trump’s First Defeat.

The article gets the job done but states, in an accurate but unintentionally misleading way, that Judge Donnelly did not rule on the unconstitutionality of Trump’s actions. She had no occasion to make a definitive ruling, because the case was at a preliminary stage and the poor government lawyers had not had a chance to research and write a brief. What she did say is quoted above: that the plaintiffs have a strong likelihood of obtaining a definitive ruling that the president acted unconstitutionally.