President Donald Trump on Wednesday went directly after the appellate court judges mulling whether to revive his controversial order banning immigrants from seven Muslim-majority countries from entering the United States.
In a remarkable scene, the new president used words like “biased” and “political” to describe any court that disagrees with the executive order he signed on Jan. 29. His sharpest comments were directed right at the U.S. Court of Appeals for the 9th Circuit judges who expressed deep skepticism of the order on Tuesday night.
The president told a gathering of local law enforcement officials at a hotel near the White House that he personally listened in on oral arguments before the 9th Circuit the night before — then cable news analysis of the proceedings — saying he “heard things I cannot believe.”
He added that some of the comments from the judges who will decide whether to keep a federal court’s freeze in place and the arguments of a top Washington state lawyer had “nothing to do with” the part of the U.S. Code his administration is arguing gives the president the power to decide who can enter the country — and who cannot.
In a pre-emptive strike before he talked to the law enforcement officers, Trump suggested the court was playing politics.
If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!
— Donald J. Trump (@realDonaldTrump) February 8, 2017
Trump began his remarks by immediately delving into the 9th Circuit’s Tuesday telephone session and ongoing deliberations about his refugee order. From the outset, it appeared Trump was trying to pit the law enforcement officers in the room against the country’s court system.
He called it “incredible” that the court battle over the Muslim travel order has gone on “for so long” — even though the federal court ruling only came down Friday evening. And he surmised, to very tepid applause, that the federal court judges are “interpreting things differently than I’d say 100 percent of the people in this room.”
“I never want to call a court biased. … But the courts seem to be so political,” Trump said, introducing the idea that the 9th Circuit judges have a political bent against him without overtly saying or clearly proving it, a tactic he used against his GOP primary foes and Democratic nominee Hillary Clinton.
“Right now, we are at risk because of what happened,” he added, referring to the lower court’s Friday freeze on his order.
Sitting presidents in the past have allowed their frustrations with the Judicial Branch to show in public, but legal experts say they cannot recall when a chief executive so forcefully attacked judges deliberating such a sweeping matter as the refugee order.
Trump’s comments seemed calibrated to both put pressure on the 9th Circuit — he called the U.S. Code “clear,” arguing a poor high school student could understand its meaning — and undermine its legitimacy should it rule against him.
The court could rule as soon as Wednesday, and the president said it would be “great” if the appellate judges “could read a statement and do what’s right.”
Trump had lashed out at the lower court, via Twitter, on Saturday. His attacks on the Judicial Branch could pose political problems for congressional Republicans, but Speaker Paul D. Ryan, R-Wis., attempted to deflect such notions on Tuesday.
“He’s not the first president to get frustrated by a ruling from the court,” Ryan said of Trump’s recent tweeting about the federal judge who issued the stay on his immigration executive order. Ryan said the Trump administration is honoring the judge’s order, noting that’s what matters most.
Trump read the part of the U.S. Code his administration argued to the appellate justices gives the office of the presidency “clear” authority to decide who enters the United States and who is blocked. At one point during Tuesday’s arguments, an attorney for the government, August E. Flentje, argued that Trump’s executive order was constitutional and well within the president’s power. At one point, he told the judges the commander in chief’s legal authorities are unquestionable by the Judicial Branch, though he later walked that back a bit.
Congress and the administration determined that seven countries — Iran, Iraq, Syria, Sudan, Somalia, Yemen and Libya — posed the greatest risk of terrorism, Flentje said, and the lower court had allowed some “very troubling second guessing” into Trump’s national security decision.
But Trump, in yet another remarkable moment on Wednesday, seemed to double down on Flentje’s initial assessment of the U.S. Code, saying it means, for a sitting president, “you can do whatever you want.”
Based on their sharp questions for the Justice Department lawyer the night before, however, it seemed the 9th Circuit panel is skeptical of that argument.
For instance, Senior Circuit Judge Richard R. Clifton, a George W. Bush appointee, called Flentje’s argument that the lower court’s decision “altered” the president’s ability to make national security judgments “pretty abstract.” And Circuit Judge Michelle T. Friedland, a Barack Obama appointee, appeared to reject any notion that a president’s decision on a national security matter is “unreviewable.”
Evidence suggests the 45th American chief executive should be concluding otherwise as the courts freeze his refugee order and GOP lawmakers slow his efforts to move quickly on legislation covering issues like health care. But Trump showed on Wednesday morning that as a New York City native who grew up in Queens, he simply will never back down from a fight.
And it appears he wants law enforcement on his side for this and future ones, even if that means splitting those with badges from those who wear robes at their local courthouses. To that end, Trump sought to bring — or keep — the police chiefs and sheriffs before him on his side, saying of his perceived unlimited powers in the national security realm: “You are the chiefs, you are the sheriffs, you understand this.”