Don: I appreciate that. I want to bring in now my experts, my legal analysts, Laura Coates, constitutional attorney, Page Pate and senior political analyst, David Gergen. Good evening to all of you for this special edition of CNN tonight. Page, I want to get your take first. Who had the stronger argument?
Page: Oh, I think the states had the stronger argument. I think it was clear that this particular lawyer from the Department of Justice was either not prepared for the questions that he got or had not really thought through what the key issues were going to be. He was not prepared to deal, I don’t think with the arguments relating to the constitutional challenge. I think he was really caught flat-footed on the issue of whether or not there was even a need for the travel ban, while the administration went back to reconsider the way that they were dealing with these immigration issues.
Don: Oh wow, okay. So, let’s listen to a little bit of it because August Flentje, the government lawyer was peppered with questions, tough questions by the three judges. Here’s one exchange.
August: And these proceedings have been moving quite fast and we’re doing the best we can. I can site…
Michelle: You’re saying that the proceedings are moving fast, but you appealed to us before you continued in the district court to develop the record. So, why should we be hearing this now if it sounds like you’re trying to say you’re going to present other evidence later?
August: Well, I was just about to at least mention a few examples.
Don: Interesting. So, he had to defend an executive order that was written when the Attorney General wasn’t even confirmed, written with no input from the Justice Department. Did the White House hurt themselves by moving too fast to get this order signed? That’s for you, Laura.
Laura: Well, I think they did because, of course, you had Sally Yates who was just fired a few weeks ago for having the same argument of, “I don’t know how we’re going to be able to defend this case,” not that there was an ultimate conclusion, but the same argument that she had back then was, “This is difficult to actually be able to defend,” and you saw that today in the court. But most importantly here, what you had is lack of preparedness with respect to one, really, primary issue. What was the substantive, factual basis for having these seven countries named? The government assumed they were going to be able to say, “Our biggest gun is a national security issue here. The president has a priority to do what he wants with national security. And you have to take our word for it.” And the court said to him today, “Is it hypothetical or is this a real live national security concern?” And they did not have the evidence there to support it yet.
Don: It’s very interesting. I also want to bring in Mark Preston, our executive editor of politics here, as well. Mark, before I get to you, I just want to bring David Gergen in. David, as you were listening to this, as a lay person, who do you think made a better case?
David: Well, I must tell you, Don, I was at a dinner and had to rely on various excerpts and accounts since. But my impression from all of this is the judges asked both sides very tough questions and the Washington State provided better answers. And there’s a general sense I think, out there in the press right now that the judges showed, two of the judges at least, out of the three, showed a lot of skepticism toward the government’s case. What that means, if in fact, that’s the way it comes out, and this is the two democratically appointed, if it comes out that they…that this court upholds what the district court did and then the government appeals to the Supreme Court, in order to get it turned around so that the original, the district court temporary restraining order, is dismissed. In order to get that, they’ve got to get… The government has to get five out of the eight votes at the Supreme Court. That may be an uphill battle in a court that’s closely divided. And if the government then loses, the ban is ended while the courts then wrestle over the substance. So, this could be a long process, but it also means that the government, and especially the man sitting in the Oval Office, is going to be pretty darn angry.
Don: Interesting. I think that the first night that this happened, that Laura, I think you said that this was going to take a while. This was not going to end overnight or any time soon. But let’s, I want to listen a little bit more. Mark Preston, this is Noah Purcell, the Washington State lawyer, he opens his presentation. Watch this.
Noah: It has always been the judicial branches role to say what the law is and to serve as a check on abuses by the executive branch. That judicial role has never been more important in recent memory than it is today. But the President is asking this court to abdicate that role here, to reinstate the executive order without meaningful judicial review, and to throw this country back into chaos.
Don: So, President Trump, Mark, has been very critical of the courts calling Judge Robart, a “so-called judge,” essentially, holding the court responsible if there is a terror attack. Is Purcell asking the courts to push back?
Mark: You know, I believe so and, in many ways, we have seen Donald Trump, Don, do this on multiple occasions with this one judge, over a period of two days because he didn’t like the district court’s ruling. We also know that he has a history of attacking judges when he believes the judges are not going to rule in his favor. And I thought it was an interesting tactic by Washington State to come out and really try to lay the groundwork that there are three equal…co-equal branches of government. And it’s the judiciary’s role to look at these laws and interpret, whether they are sustainable or not, and whether they are legal or not, and that they, in many ways have to be there in order to try to keep some kind of oversight, so to speak, of not only of the executive branch, but also the legislative branch as well, Don.
Don: All right, panel. Thank you very much.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.