The speed with which the Department of Homeland Security complied with a Seattle federal judge’s order halting the White House travel ban may have been driven in part by fear that the judge might ask officials for their emails.
Even as President Donald Trump ridiculed U.S. District Judge James Robart on Twitter, Homeland Security officials moved swiftly to suspend “any and all actions” related to the ban on travelers from seven predominantly Muslim countries.
“DHS personnel will resume inspection of travelers in accordance with standard policy and procedure,” the department said in a statement issued shortly after Robart issued his ruling.
The announcement was an abrupt about-face after a week of national protests and court battles that have besieged the Trump administration while still in its infancy. But none of this is happening in a vacuum.
They needed to show extreme compliance with the judge’s order lest they run into the same situation that occurred with Judge Hanen. Leon Fresco, former Obama official.
Even though the White House and top levels of Homeland Security are staffed by new people, many career officials at DHS and the Department of Justice likely remember the blistering rebuke a federal judge from Texas delivered to the Obama administration in another immigration case for what the judge felt were efforts to deceive him.
The judge, Andrew Hanen of the Southern District of Texas, ordered the Obama administration to turn over to him “any and all” drafts of an Obama order intended to protect from deportation the undocumented parents of children born in the United States. Hanen also ordered the administration to turn over all metadata that would identify who took part in drafting the order.
“Everybody is still scarred by the experience that occurred in the DAPA case with Judge Hanen,” said Leon Fresco, who was head of the Department of Justice’s Office of Immigration Litigation under Obama, referring to the Deferred Action for Parents of Americans order.
Fresco remembers Hanen was livid about what he felt was misconduct in the case, ordering the Obama administration to turn over all emails related to the order. “I want to see all the emails,” Fresco recalled Hanen ordering. “I want to put people in contempt. I want potentially to take people’s bar licenses away.”
Eventually, the Justice Department turned over the material, and Hanen took no action against any Obama official. But career employees of the government remember.
“People do not want to run afoul of that here in this court in Seattle,” Fresco said.
The White House has filed an appeal of Robart’s ruling, in which he found “no support” for the Trump administration’s argument that “we have to protect the U.S. from individuals from these countries,” referring to the seven Muslim-majority countries named in Trump’s Jan. 27 executive order – Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen.
“The law is a powerful thing,” said Washington state Attorney General Bob Ferguson, who filed the challenge. “It has the ability to hold everybody accountable to it. And that includes the president of the United States.”
Trump’s order cited national security as the reason he was barring indefinitely the entry of refugees from Syria, placing a 120-day moratorium on refugee admissions from other countries, and freezing for 90 days the entry of anyone from the seven named countries.
As originally enforced, the order applied to permanent U.S. residents, dual citizens, and a variety of other visa holders, including students at U.S. universities. A lawyer for the United States government testified Friday in a Virginia courtroom that more than 100,000 visas had been revoked as part of Trump’s order.
Many of those restrictions fell even before Robart’s ruling late Friday as a half-dozen federal judges in other jurisdiction ruled against the order.
But the Department of Homeland Security’s moved quickly to make sure the judge knew the rest of the order would not be enforced. By early Saturday, DHS had notified foreign airlines that they should allow anyone with valid travel papers to board flights for the United States.
That speed may be an indication of the resistance Trump has found inside the government to the order. Trump fired the acting attorney general after she said the Justice Department would not defend the travel ban in court. Hundreds of U.S. diplomats signed an official dissent at the State Department saying the the order would damage U.S. relations with the Muslim world and would become an effective recruiting tool for al Qaida and the Islamic State.
But it might also be an effort to ease any concerns that the Trump administration had attempted to hide the impact of the order. Both chief of staff Reince Priebus and press secretary Sean Spicer at first insisted only 109 travelers had been affected. It was only five days later that officials revealed the correct number was in the tens of thousands.
In the Texas case, Hanen grew angry after the Obama administration delayed revealing a crucial detail – how many individuals had received three-year deferments under the DAPA order. The number was 108,081.
Trying to get to the bottom of what he felt was an unreasonable delay, Hanen demanded “all . . . tangible items that indicate when each draft of the document was written and/or edited or revised” as well as the names of any person who knew about the DAPA order or reviewed it and the date that review occurred.
He ordered that no documents, emails, computer records, or hard drives be “destroyed or erased.”
Hanen eventually declared that Obama had overstepped his authority in issuing the DAPA order. His ruling was upheld by the 5th U.S. Circuit Court of Appeals.
In a development that also could happen in the current case, the Supreme Court in June split 4-4 on the ruling, a tie that allowed the 5th Circuit ruling to stay in effect.
The memory of Hanen’s anger is likely behind the government’s quick reaction to Robart’s order.
“They needed to show extreme compliance with the judge’s order lest they run into the same situation that occurred with Judge Hanen,” Fresco said.
Email: fordonez@mcclatchydc.com; Twitter: @francoordonez.
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