Administration Lawyers Are Arguing A Lawyer’s Letter Overrules The Executive Order Trump Actually Signed
"You have a problem here," a federal judge told a Justice Department lawyer on Friday.
WASHINGTON — As President Trump and the White House careen through the first month of his presidency, the lawyers behind him are trying to keep things from falling off the rails.
Think about when people say that Kellyanne Conway, President Trump’s counselor and a key White House spokesperson on TV news shows, has a job that entails her telling people, “What the president was really saying is …”
That’s what’s happening in courts across the country right now, on the most pressing issue in the new administration.
After Trump issued the refugee and travel ban executive order on Jan. 27, there was confusion — in airports and among officials and lawyers — about whether lawful permanent residents from the seven affected majority-Muslim countries were covered by the “entry” ban — which was focused on visa holders. In other words: Could people with green cards (LPRs) get into the U.S. from those countries?
The Department of Homeland Security initially advised that LPRs were not covered by the ban, then the White House reportedly overruled that. On Jan. 29, DHS Secretary John Kelly announced that LPR status would be a “dispositive factor” in making determinations about whether to grant a waiver to allow someone otherwise covered by the executive order to enter the country. In other words, people with green cards were covered by the president’s order but would nonetheless be granted entry into the country under the ban.
That still didn’t settle the matter, especially in a series of lawsuits across the country. So on Feb. 1, White House counsel Don McGahn issued a letter to “clarify” that the travel ban “do[es] not apply” to LPRs.
The unusual letter, from the counsel to the president, purported to provide “Authoritative Guidance” about the executive order and was addressed to Kelly, the acting secretary of state, and the acting attorney general. McGahn acknowledged in the letter that it was being written because “there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States.”
In other words: “What the president was really saying is …”
The Justice Department has backed up the White House’s move, arguing this week in federal court in Michigan, for example, that McGahn’s letter meant that “the court lacked jurisdiction to issue the injunction” against enforcement of the executive order because “there was no longer a live case or controversy between the parties as to the applicability of the Executive Order to the LPR plaintiffs.”
The filing came in a case in which a federal judge had issued a permanent injunction barring the federal government from applying the executive order to LPRs. The Justice Department is asking the court to “dissolve” — or end — that injunction in favor of a more narrow order that would “confirm hereby that the Executive Order does not apply to Lawful Permanent Residents as explained in the guidance issued by the White House Counsel on February 1, 2017.”
The Justice Department lawyers went on to argue that McGahn’s letter should deprive the court of jurisdiction — the ability even to hear the challenge — even though White House counsel acknowledged in the letter that the executive order itself left “reasonable uncertainty” about the question.
Notably, the Justice Department’s brief in the Michigan case does not mention that the clarification did not come from the president, but rather simply refers to it as having come from “the White House.”
In the time since McGahn issued the letter, all courts but one to look at the issue have questioned just how “authoritative” the guidance is.
At oral arguments at the US Court of Appeals for the Ninth Circuit over whether to allow the federal government to enforce the executive order while litigation is ongoing, Judge Richard Clifton pressed the government on this point.
“I have to say, is there any legal authority for the counsel to the president to have power to instruct other departments, or to instruct us, as to what the order means?” he asked. “I mean, the president can amend the order, but I’m not sure that the counsel to the president has that authority.”
August Flentje, the Justice Department lawyer arguing in favor of the federal government’s request said that “the guidance from the White House counsel is the definitive interpretation of the order, and the White House counsel speaks for the president in this context.”
The appeals court did not buy it.
“The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely,” the court held in its Thursday night opinion.
The court continued:
“Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”
The one court to side with the Justice Department on this issue did so without directly addressing the issues raised by McGahn’s letter.
In denying a request to extend a temporary restraining order issued in a challenge to the ban out of Massachusetts, US District Judge Gorton wrote, “On February 1, 2017, the White House distributed a memorandum to the Acting Secretary of State, the Acting Attorney General and the Secretary of Homeland Security clarifying that Sections 3(c) and 3(e) of the EO do not apply to lawful permanent residents.”
Gorton went on to look at the text of the executive order itself, as well as immigration law, concluding that the ban “was not intended to be applied to lawful permanent residents.” Of course, that ignores the confusion within the administration about whether LPRs are covered — as well as McGahn’s acknowledgment that there was “reasonable uncertainty” about whether LPRs are covered.
“In light of the government’s clarification that the EO will not be applied to lawful permanent residents, the claims for injunctive relief by [lawful permanent resident plaintiffs] are moot,” Gorton concluding, without ever addressing the legal authority for or effect of that “clarification.”
On Friday morning, though, in yet another challenge to aspects of the order brought in federal court in Virginia, it was clear that the issue would keep providing difficulties in the administration’s legal defense of the executive order. US District Judge Leonie Brinkema addressed the counsel’s letter, reading from the Ninth Circuit’s decision about the issue.
“You have a problem here,” she said.