Byron York writes in the Washington Examiner:
Perhaps the most remarkable thing about the 9th Circuit oral argument over President Trump's executive order was that lawyers for both sides seemed to know nothing about some of the most basic real-world issues surrounding the case. Two examples:
First, the question of terror-related crimes committed by people who come from the seven nations covered by the Trump order. Many of the president's adversaries have claimed that no terror-related crimes have been committed by nationals of the affected countries — Libya, Somalia, Sudan, Yemen, Syria, Iraq, and Iran. "The various people who have, in fact, committed terrorist acts in this country, from 9/11 on, none of them came from any of the seven countries that are the subject of the president's executive order," New York Democratic Rep. Jerrold Nadler said on CNN Jan. 28.
Even James Robart, the judge on the U.S. District Court for the Western District of Washington State who temporarily stopped the Trump order, believed the talking point.
"How many arrests have there been of foreign nationals for those seven countries since 9/11?" Robart asked a Justice Department lawyer in court on Feb. 3. When the lawyer said she didn't know, Robart said, "Let me tell you. The answer to that is none, as best I can tell."
It turns out the judge, and Nadler, and everybody else repeating the talking point had it wrong. Last year the Senate Judiciary Subcommittee on Immigration and the National Interest released information showing that at least 60 people born in the seven countries had been convicted — not just arrested, but convicted — of terror-related offenses in the United States since Sept. 11, 2001. And that number did not include more recent cases like Abdul Artan, a Somali refugee who wounded 11 people during a machete attack on the campus of Ohio State University last November.
So the talking point wasn't true. And yet at the 9th Circuit oral argument, the judges appeared to believe it was true, and Justice Department lawyer August Flentje didn't know enough to correct them.
"Has the government pointed to any evidence connecting these countries with terrorism?" asked Judge Michelle Friedland, an Obama appointee.
"These proceedings have been moving very fast," Flentje responded. "I can — and the strongest point on that is, in 2015 and 2016 both Congress and the administration made determinations that these seven countries pose the greatest risk of terrorism and in doing so restricted visa waiver to people who would [have] even travelled to those countries over the last five or six years."
"Is there any reason for us to think that there's a real risk or that circumstances have changed so that it would be a real risk if existing procedures weren't allowed to stay in place while the administration, the new administration, conducts its review?" asked Judge Richard Clifton, a George W. Bush appointee.
"Well, the president determined that there was a real risk," said Flentje.
"In the transcript of the hearing in the district court, the district court asks the representative of the Department of Justice ... how many federal offenses have we had being committed by people who came in with visas from these countries?" said Judge William Canby, a Jimmy Carter appointee. "And the ultimate answer was, there haven't been any."
"Yes, your honor, these proceedings have been moving quite fast and we're doing the best we can — "
Clearly, the judges thought the point was important — if the Trump administration is taking action in response to the possibility of a threat from people coming from the countries covered in the order — to know if there was a record of threats, or problems, coming from those countries. And not just the judges — the question has been a big part of the public conversation about the Trump order in the days leading up to the hearing. And yet the Justice Department lawyer seemed to know nothing.
Friedland wanted to know whether Flentje planned to introduce evidence about threats at some later date in a lower court — and if so, why was the appeals court even having the hearing?
"I was just about to at least mention a few examples," Flentje said. "There have been a number of people from Somalia connected to Al-Shabab who have been convicted in the United States."
"Is that in the record?" Friedland asked. "Can you point us to where in the record you're referring?"
"It is not in the record," Flentje said. "There have also been other examples, but again you're correct, these are not in the record."
They were not in the record because the Justice Department had not put them in the record. And by the way, the information in that Senate judiciary subcommittee report cited above? It came from the Justice Department. The legal team defending the president's order didn't know its own information.
The other example of the lawyers' lack of knowledge comes from the other side — Washington State Solicitor General Noah Purcell. It concerns another basic question in the executive order debate — whether the order is somehow a "ban" on Muslims. That is not only at the heart of Washington State's case but has also been a staple of discussion about the Trump order. Yet when Judge Clifton quizzed Purcell, he appeared to know nothing.
"Let me ask you about the, I'll call this religious discrimination claim," Clifton said to Purcell. "To reach both the equal protection and Establishment Clause claims, and I'm not entirely persuaded by the argument if only because, the seven countries encompass only, I think a relatively small percentage of Muslims. Do you have any information as to what percentage or what proportion of the adherence to Islam worldwide are citizens or residents of those countries? My quick penciling suggests it's something less than fifteen percent." [The actual figure is about 12 percent, according to Pew Research.]
"I have not done that math, your honor," Purcell said.
"I have trouble understanding why we're supposed to infer religious animus when in fact the vast majority of Muslims would not be affected as residents of those nations," Clifton said. "And where the concern for terrorism with those connected with radical Islamic sects are sort of hard to deny."
Purcell argued that, according to the law, Washington State does not need to prove that the Trump order would harm every Muslim. "We just need to prove that it was motivated in part by a desire to harm Muslims," he said.
"How do you infer that desire if in fact the vast majority of Muslims are unaffected?" Clifton asked.
"No type of discrimination claim requires you to show that every single person of that category was harmed by the action," Purcell countered. "You just have to show that the action was motivated in part by a desire to harm that group."
"Point me to the situation where the proportion affected were less than fifteen percent," Clifton said.
"Your honor, I'm sorry, I haven't thought of, as I said I have not done that math for the argument. I have not thought about the case in that, in those terms."
Just like Flentje, Purcell had no idea about some key information in the case. Both data points — the number of people from the affected countries who have been involved in terror-related activities and the percentage of Muslims worldwide who would be covered by Trump's order — tended to favor the government's side. Yet Justice Department lawyers did not put them in their brief.
Regardless of the quality of the oral arguments — and both lawyers turned in weak performances — the government's case in support of the Trump order is strong. On the other hand, Justice Department lawyers know they are climbing uphill when arguing the case in liberal parts of the country like Washington State and San Francisco, home of the 9th Circuit. To prevail, they'll need to have their act together.