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Pence Defends Trump’s Criticism of Judge Who Blocked Travel Ban Trump Clashes Early With Courts, Portending Years of Legal Battles
(about 5 hours later)
WASHINGTON — Vice President Mike Pence on Sunday defended President Trump’s personal attack on the federal judge who blocked his travel ban on seven predominately Muslim countries, saying that the president’s remarks did not risk undermining the bedrock principle of the separation of powers. WASHINGTON — President Trump is barreling into a confrontation with the courts barely two weeks after taking office, foreshadowing years of legal battles as an administration determined to disrupt the existing order presses the boundaries of executive power.
Asked about Mr. Trump’s reference on Twitter to the “so-called judge” who ordered a stay of the president’s executive order, Mr. Pence said on NBC’s “Meet the Press”: “Well, look, the president of the United States has every right to criticize the other two branches of government. And we have a long tradition of that in this country.” Lawyers for the administration were ordered to submit a brief on Monday defending Mr. Trump’s order temporarily banning refugees from around the world and all visitors from seven predominantly Muslim countries from entering the United States. An appeals court in California refused on Sunday to reinstate the ban after a lower court blocked it.
“The judge’s actions in this case,” Mr. Pence added, “making decisions about American foreign policy and national security, it’s just very frustrating to the president, to our whole administration, to millions of Americans who want to see judges that will uphold the law and recognize the authority the president of the United States has under the Constitution to manage who comes into this country.” As people from the countries targeted by Mr. Trump struggled to make their way to the United States while they could, the president for the second day in a row expressed rage at the judge in the case, this time accusing him of endangering national security. Vice President Mike Pence defended the president’s tone, but lawyers and lawmakers of both parties said Mr. Trump’s comments reflected a lack of respect for the constitutional system of checks and balances.
After nearly 20 hours of silence on Twitter, Mr. Trump returned on Sunday afternoon, accusing the judge of imperiling the country. Late in the day, Mr. Trump took to Twitter to pre-emptively blame the judge and the judiciary for what the president suggested would be a future terrorist attack.
But some Republicans said Mr. Trump’s attacks were inappropriate. The Senate’s top Republican, Mitch McConnell of Kentucky, said on CNN’s “State of the Union” that it was “best not to single out judges.” “Just cannot believe a judge would put our country in such peril,” Mr. Trump wrote, a day after referring to the “so-called judge” in the case. “If something happens blame him and court system.”
“We all get disappointed from time to time,” Mr. McConnell said. “I think it is best to avoid criticizing them individually.” Even before the latest post, Republicans joined Democrats in chiding him. Senator Mitch McConnell of Kentucky, the majority leader, said it was “best not to single out judges.”
It is the role of the courts, he said, to decide “whether or not the executive order of the president that is issued is valid.” He said Congress was unlikely to act on the matter. “We all get disappointed from time to time,” he said on CNN’s “State of the Union.” “I think it is best to avoid criticizing judges individually.”
The comments came hours after the United States Court of Appeals for the Ninth Circuit, in San Francisco, rejected an initial Justice Department request to block the stay that was issued on Friday by Judge James Robart of United States District Court for the Western District of Washington. The White House offered no evidence for Mr. Trump’s suggestion that potential terrorists would now pour over the border because of the judge’s order. Since Sept. 11, 2001, no American has been killed in a terrorist attack on American soil by anyone who immigrated from any of the seven countries named in Mr. Trump’s order.
Speaking on “Fox News Sunday,” Mr. Pence said the administration would continue to “use all legal means at our disposal to stay that order.” He framed the issue as a matter of national security. The impassioned debate over the immigration order brought to the fore issues at the heart of the Trump presidency. A businessman with no experience in public office, Mr. Trump has shown in his administration’s opening days that he favors an action-oriented approach with little regard for the two other branches of government. While Congress, controlled by Republicans, has deferred, the judiciary may emerge as the major obstacle for Mr. Trump.
“There’s simply no question under the Constitution, and frankly under federal law, that the president of the United States has the authority in the interest of national security to determine who has the right to come into this country,” Mr. Pence said on “This Week.” Democrats and some Republicans said Mr. Trump’s attack on the courts would color the battle over the nomination of Judge Neil M. Gorsuch to the Supreme Court as well as the president’s relationship with Congress.
Mr. Pence’s language was markedly less personal than that of Mr. Trump, who has repeatedly attacked the ruling on Twitter, singling out Judge Robart and asking “What is our country coming to” when a court can halt an order that affects the nation’s security. Other presidents have clashed with the judiciary. The Supreme Court invalidated parts of Franklin D. Roosevelt’s New Deal, forced Richard M. Nixon to turn over Watergate tapes and rejected Bill Clinton’s bid to delay a sexual harassment lawsuit.
Critics in both parties said the president had demonstrated a lack of understanding of or a disregard for the nation’s three equal branches of government. The last two presidents battled with courts repeatedly over the limits of their power. The judiciary ruled that George W. Bush overstepped his bounds in denying due process to terrorism suspects and that Barack Obama assumed power he did not have to allow millions of unauthorized immigrants to stay in the country.
“I’ll be honest, I don’t understand language like that,” Senator Ben Sasse, Republican of Nebraska, said on “This Week.” “We don’t have so-called judges. We don’t have so-called senators. We don’t have so-called presidents.” Charles Fried, solicitor general under Ronald Reagan, said the ruling by a Federal District Court in Washington state blocking Mr. Trump’s order resembled a ruling by a Texas district court stopping Mr. Obama from proceeding with his own immigration order.
“We have people from three different branches of government who take an oath to uphold and defend the Constitution,” Mr. Sasse said. But rarely, if ever, has a president this early in his tenure, and with such personal invective, battled the courts. Mr. Trump, Mr. Fried said, is turning everything into “a soap opera” with overheated attacks on the judge. “There are no lines for him,” said Mr. Fried, who teaches at Harvard Law School and voted against Mr. Trump. “There is no notion of, this is inappropriate, this is indecent, this is unpresidential.”
Democrats were less restrained and said the issue would color the battle over the nomination of Judge Neil M. Gorsuch, Mr. Trump’s choice for the Supreme Court. Other Republicans brushed off the attacks, noting that judges have lifetime tenure that protects them from criticism. But even some Republicans said Mr. Trump’s order raised valid legal questions for the courts.
“When he attacks the independence of the judiciary, I think it does focus on the fight before us now,” Senator Amy Klobuchar, Democrat of Minnesota, said on “This Week.” “And that is that we want to see a nominee that is independent, not just of a president, but is not making decisions based on ideology but instead making decisions based on precedent.” “If I were in the White House, I’d feel better about my position if the ban or moratorium or whatever you call it were based on an actual attack or threat,” former Attorney General Alberto R. Gonzales, who served under Mr. Bush, said in an interview. Still, he said, when it comes to noncitizens overseas, “the executive has enjoyed great deference from the courts.”
Ms. Klobuchar said the attack on Judge Robart fit a pattern for Mr. Trump. Judge James Robart, a Federal District Court judge in Seattle appointed by Mr. Bush, on Friday issued a nationwide suspension of Mr. Trump’s order while its legality was debated. The administration quickly asked the United States Court of Appeals for the Ninth Circuit to overrule the judge, but it refused early Sunday and instead ordered the government to file a brief on Monday. The quick briefing schedule indicated that the appeals court could issue a ruling on the merits of the president’s order within days.
“He attacked Judge Curiel during the course of his campaign on the Trump University case. He attacked the acting attorney general,” she said, referring to Judge Gonzalo P. Curiel, whom Mr. Trump accused of having a conflict of interest because of his Mexican heritage, and Sally Q. Yates, whom Mr. Trump fired after she ordered the Justice Department not to defend the executive order. In the meantime, refugees vetted by the government can proceed to the United States, as can any travelers with approved visas from the seven targeted nations: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Senator Dianne Feinstein of California, the top-ranking Democrat on the Judiciary Committee, predicted that the matter would ultimately be decided by the Supreme Court. Still, widespread confusion and anger were reported at overseas airports on Sunday. Unsure which orders to follow, airlines stopped even some of the people named in the lawsuits who were technically cleared to come to the country, according to a government official.
“The president is not a dictator,” Ms. Feinstein said on “Fox News Sunday.” “The framers of our Constitution wanted a strong Congress for the very reason that most of these kinds of things should be done within the scope of lawmaking. This is done within the scope of executive power.” The assertion of broad latitude by the president in areas of national security resembles the struggles of the Bush years, when in the months after the Sept. 11 attacks the administration claimed sometimes sweeping power in the name of fighting terrorism.
Jack Goldsmith, who as head of the Justice Department’s Office of Legal Counsel under Mr. Bush argued that some of the initial orders went too far and forced them to be rolled back, said on Sunday that there were similarities. “But Bush’s legal directives were not as sloppy as Trump’s,” he said. “And Trump’s serial attacks on judges and the judiciary take us into new territory. The sloppiness and aggressiveness of the directives, combined with the attacks on judges, put extra pressure on judges to rule against Trump.”
This was not the first time Mr. Trump has castigated a judge who ruled against him. As a candidate last year, Mr. Trump asserted that Judge Gonzalo P. Curiel, who was presiding over a fraud lawsuit by former students of Trump University, had a conflict of interest because his family was of Mexican heritage and he therefore would be biased because of Mr. Trump’s promise to build a border wall.
Such comments from a sitting president, however, were unusual and triggered consternation in the legal community. Bartholomew J. Dalton, the president of the American College of Trial Lawyers, called Mr. Trump’s “insulting language” inappropriate.
“It is wrong for the chief executive of the executive branch to demean a member of the judiciary with such language,” Mr. Dalton said in a statement. “This undermines judicial independence, which is the backbone to our constitutional democracy.”
Senators of both parties appearing on Sunday talk shows concurred. “I’ll be honest, I don’t understand language like that,” Senator Ben Sasse, Republican of Nebraska, said on “This Week” on ABC. “We don’t have so-called judges. We don’t have so-called senators. We don’t have so-called presidents. We have people from three different branches of government who take an oath to uphold and defend the Constitution.”
“The president is not a dictator,” Senator Dianne Feinstein of California, the Judiciary Committee’s top Democrat, said on “Fox News Sunday.” “The framers of our Constitution wanted a strong Congress for the very reason that most of these kinds of things should be done within the scope of lawmaking. This is done within the scope of executive power.”
It fell to Mr. Pence to defend Mr. Trump. “Well, look, the president of the United States has every right to criticize the other two branches of government. And we have a long tradition of that in this country,” he said on “Meet the Press” on NBC.
“The judge’s actions in this case,” he added, “making decisions about American foreign policy and national security, it’s just very frustrating to the president, to our whole administration, to millions of Americans who want to see judges that will uphold the law and recognize the authority the president of the United States has under the Constitution to manage who comes into this country.”