DOJ Attorney Blunders Through Appeals Court Hearing On Muslim Ban

Justice Department attorney August E. Flentje was asked multiple times to produce evidence for why the stay was needed to prevent irreparable harm. He was able to provide zero factual claims.
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    Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco, Tuesday, Feb. 7, 2017. A panel of appeals court judges reviewing President Donald Trump's travel ban hammered away Tuesday at the federal government's arguments that the states cannot challenge the order. (AP/Jeff Chiu)

    Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco, Tuesday, Feb. 7, 2017. A panel of appeals court judges reviewing President Donald Trump’s travel ban hammered away Tuesday at the federal government’s arguments that the states cannot challenge the order. (AP/Jeff Chiu)

    Published in partnership with Shadowproof.

    A federal appeals court heard argument on a request from President Donald Trump’s administration to stay a temporary restraining order against the “extreme vetting” executive order commonly known as the Muslim ban.

    Justice Department attorney August E. Flentje was asked multiple times to produce evidence for why the stay was needed to prevent irreparable harm. He was able to provide zero factual claims, and that seemed to fluster the Ninth Circuit Court of Appeals judges.


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    “These proceedings are moving quite fast,” Flentje declared, when he was unable to come up with a satisfactory answer that would prove the executive order was needed to keep the United States safe. He later added with little specificity that there were Somalis connected to the terrorist group, al Shabaab. There are “other individuals,” who pose a threat but those people are not in the record.

    When Flentje complained about proceedings moving too quickly, Judge Michelle Friedland pointed out that it was the government that filed an emergency motion. They sped up the process without waiting for a lower court to rule on the merits of a case brought by the states of Washington and Minnesota.

    “Are you arguing that the president’s decision is unreviewable?” Friedland asked. To that, Flentje said the appeals court should only look at U.S. citizens’ claims.

    The Justice Department attorney did not believe the courts should weigh allegations of bad faith on the part of the president and his staff of advisors. He suggested the case be “confined to the four corners of the document.” But the judges did not seem to fully buy that because the states have public statements suggesting the officials had an intent to target Muslims with an order that they crafted and gave a legal veneer.

    Judge William Canby bluntly asked what would happen if Trump said, “We’re not going to let any Muslims in.” Canby wondered if the president could do that and whether anyone would be able to challenge that action. Flentje was pressed into answering and said someone impacted by that ban would be able to file a complaint in court.

    “I’m not sure I’m convincing the court,” Flentje said. He shifted slightly to argue the states’ claims were “overbroad.”

    Noah Purcell, the solicitor general for the state of Washington, focused on the argument that Trump would like the judicial branch to shirk its duty as a check on the executive branch and reinstate the executive order. This would throw the country back into chaos, as was on display when the order was first signed.

    Judge Richard Clifton challenged Purcell over whether the states had any evidence of religious discrimination. He noted the order only applies to seven Muslim-majority countries, a small percentage of Muslims in the world. Purcell insisted the states only had to prove the executive order was motivated in part by a desire to harm Muslims.

    The states have had no opportunity to collect discovery evidence yet. What they have primarily to rely upon, when making arguments, are statements made by Trump and advisors like former New York City Mayor Rudy Giuliani.

    Whether President Trump has the authority to single out individual countries and prevent those citizens from coming to the U.S. was raised by Clifton. Purcell appeared to contend those instances were much more focused and better tailored for security than what the Trump administration has conceived.

    Friedland later asked the Justice Department attorney why the case should not proceed to discovery to determine whether the Trump administration had some intent to harm Muslims. While Flentje did not say the states should not be allowed to do that, he argued, “It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here. That is very troubling second-guessing of the national security decision made by the president.”

    The appeals court did not indicate when they would make a decision on whether to nullify the stay and reinstate the executive order.

    On February 4, the administration filed an emergency motion with the appeals court after U.S. District Judge James Robart ruled against the administration and issued a broad temporary restraining order that led the Homeland Security Department and State Department to pause their enforcement of the ban. That made it possible for non-U.S. citizens with visas and refugees, who had gone through vetting processes, to travel to the U.S., as they were able to do before Trump’s order.

    The Trump administration maintained [PDF] the temporary restraining order “contravenes the constitutional separation of powers, harms the public by thwarting enforcement of an executive order issued by the nation’s elected representative responsible for immigration matters and foreign affairs, and second-guesses the president’s national security judgment about the quantum of risk posed by the admiration of certain classes of aliens and the best means of minimizing that risk.”

    The states of Washington and Minnesota, which brought the complaint against the ban, responded [PDF] by accusing Trump of “unleashing chaos” when he signed the executive order and urging the court not to “unleash chaos again by staying the district court order.” They called the appeal by the administration “improper.”

    The Trump administration replied [PDF] by asserting the district court erred in entering the injunction. It was a “vastly overbroad” injunction that extended “far beyond the state’s legal claims to encompass numerous applications of the order that the state does not even attempt to argue are unlawful.” It insisted the states do not have standing or the right to seek judicial review.

    Ninety-seven companies, including Apple, Facebook, Google, Microsoft, Netflix, Twitter, and Uber, backed the complaint challenging the Muslim ban. Sixteen US attorney generals backed the challenge, and so did several former top national security officials from the military and CIA.

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      • James Wherry

        He sounded unprepared, but I suppose he was unprepared because that simply wasn’t the issue.

        1. The issue is “IDENTY VERIFICATION.” The countries in question have dysfunctional ID systems or the nations like Iran and Syria simply do not cooperate with the USA. As such, we’re unable to determine if the people coming from those nations are who they say they are.

        Do you remember the Iranian wrestlers from a few years ago who entered the USA and had to be finger-printed? There was a lot of indignation, but Iran simply does not share that information with us to confirm or deny that the wrestlers were who they said they were. Was President Obama “racist” for insisting on that precaution? No.

        2. Each of those nations have ties to terrorism or terrorist groups actively working in them and threatening to destroy America and kill Americans. ISIL and al-Nusra in Syria, Iraq and LIbya. al-Shebaab in Somalia, the Iranian Republican Guard in Iran. AQAP in Yemen. The list was identified by President Obama and Congress, before President Trump took office.

        3. We shouldn’t need to wait “until someone dies,” to ensure our inspection system is working. If anyone dies from those allowed to enter this nation, the blood is on the heads of those who oppose this temporary halt to visits from citizens of those nations.

        • tapatio

          For those who are unaware, James Wherry is the “resident” Zionist troll on Mint Press. His function is to denigrate the articles here and attack anyone who tells the truth about US Imperialism, Zionism, Judaism or its gods – the Rothschild-Bilderberg Predatory Empire.

          Mr Wherry is a former major in the US Army who was employed in “Civil Affairs”, the organization that involved in “enhanced” techniques to render populations docile and obedient to whatever puppet the Empire placed over them. He has bragged on Mint Press about helping to train the state terrorists of Uganda.

          Mr. Wherry is also what is called a “gay” chickenhawk – older men who prey on young boys.. It’s actually a sub-species of ped0phile – too cowardly to actually run the risk of attacking children and turns their attention to barely legal young men. In Mr Wherry’s case, he obtained a young Filipino boy through a web site that handles such transactions, brought the boy to the US and “married” him. Presumably, the boy’s birth certificate is authentic (difficult to know in a country like the Philippines, where any official document is available for under $100). At any event, Mr Wherry appears to be a very, very dissipated 50-something and the boy looks like he should be in junior high school.

          I know this because James Wherry trolled me for some months, on this site, until I became sufficiently irritated. He was stupid enough to use his real name and a traceable photo, making it easy to investigate him and do a background check.

          ANY CREATURE THAT WOULD MAKE THE FOLLOWING STATEMENT HAS A VERY DISEASED MIND…………………..

          “”I’m very happy about it,” James Wherry said. “Marriage is the bedrock of our society. I hope that same-sex couples can rejuvenate and revitalize marriage and give it the respect it is due.””

          https://www.facebook.com/james.wherry.39

          http://wrbl.com/2015/06/27/local-reaction-to-scotus-decision/

          http://www.ledger-enquirer.com/news/local/article29462263.html

          https://www.youtube.com/watch?v=vtrbvD22CEQ

          Anyone wishing to chat with James Wherry on the subjects of Jew crimes, Jews defrauding of America and war crime involvement by US Army “Civil Affairs” could do so at this address…………….
          JAMES WHERRY
          6300 MILGEN RD, APT 1403
          COLUMBUS, GA 31907
          (Wherry claims to have moved from the above address)
          OR AT
          6450 Way Ave Bldg 2839 • Fort Benning, GA 31905
          (Fort Benning is home of School of the Americas. Wherry has claimed that he has never worked at Fort Benning – he lied)

          I’m sure Wherry would also love to show how to buy boy s-x slaves from third world countries and show the one he brought home from the Philippines
          https://uploads.disquscdn.com/images/36a0758fd596c1f9f6cd979ebdcd762e8f9a8d7220fa3a43bfbbd55abea1a8b0.jpg https://uploads.disquscdn.com/images/f559826f262fce8dd7d37180fa65e8274c229de86c8aa9b1bccb72503a5852fe.jpg https://uploads.disquscdn.com/images/eea013605a259748c46094b9daa7df4e73b4eda1da4b998ebaabe49f96fca7fb.jpg