Just Read This Memorandum Opinion — Top To Bottom
February 13, 2017

More good news for believers in our system of ordered liberty — in Alexandria, Virginia tonight — in Judge Brinkema’s US District (trial level) courtroom, the following very cogent 22 page opinion (and a related order) was entered, against Mr. Trump’s would-be Muslim Ban.

It is a preliminary injunction — and so now there are. . . two. Now you know. Nothing more really need be said, though I think 45 is likely to appeal.

This is an early Valentine’s present to all who believe in our First Amendment’s Free Exercise Clause. In view of this opinion, Mr. Trump’s appeals won’t ultimately matter — his whole initiative here. . . is now a dead letter.

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[U] No Surprise Here: Mr. Trump Wants To “Stay/Stop” The Effect Of Any Preliminary Injunction, In Seattle’s Federal Trial Courts…
February 13, 2017

life-jrobart-trump-2-2017 UPDATED @ 8 PM EST — Well as I guessed, Judge Robart has ruled against 45, again. “. . .I’m not persuaded that call for en banc review by one judge. . . ought to interfere with moving this case forward” Judge Robart ruled from the bench this afternoon — Pacific time. So discovery will be permitted to both parties, very shortly. Though in truth, there is little more the plaintiffs need provide to the lawyers for Mr. Trump. The lawyers for the States (acting in the name of the banned people), however — they are now allowed to ask LOTS of questions, of Mr. Trump — and under oath, of Mr. Bannon as well, as the draftsman (likely by submitting written interrogatories). [End, updated portion.]

However, on the black letter law — and the federal rules of civil procedure’s policy of efficient decision-making at the trial court level, I think 45 will lose. Again.

The lawyers for the States of Washington and Minnesota — the folks who essentially won, on what was characterized as a quasi-preliminary injunction in the Ninth Circuit, last week — against the Muslim Ban taking effect anywhere in the nation, would understandably like to proceed to promptly take more discovery of the Trump administration (presumably regarding intent and motive), here.

For their part, 45’s lawyers are pinning their hopes on an en banc review (though they look to be well short of the required votes for that rehearing) at the Ninth Circuit — or so they just said. By brief.

So they would like Judge Robart to stop all proceedings in Seattle’s federal District trial court. That outcome would be unusual, to say the least. The Ninth Circuit’s order was clear and direct. So Judge Robart could easily order 45 to start producing the documents he relied upon, in making the executive determination that these seven countries (and no others) should have been banned. [We have seen how the reporters at the New York Times, and the Washington Post and, even more completely, my buddies at EmptyWheel.net have shredded the justifications offered by Mr. Miller just yesterday on the Sunday talk shows.] The Trump team’s order — revised or otherwise — is in deep trouble here, in my experienced opinion.] Here’s a genuinely brief bit of the brief (heh!) from the plaintiffs — filed a few minutes ago in Seattle:

. . . .The States favor expeditious proceedings in this Court. Proceeding directly to discovery, including a prompt Rule 26(f) conference by the parties, will not interfere with the case on appeal. To the contrary, it will allow this life-geo-washington-1785-ninth-cir-arg-2017Court to consider the merits of the case in an efficient manner. Given the gravity of the States’ constitutional allegations, Defendants’ stated national security concerns, and the public interests at stake, the States respectfully submit that discovery should proceed without delay. . . .

As detailed above, the Ninth Circuit has determined that the February 3 Order operates as a preliminary injunction. In light of that conclusion, the parties should now begin discovery so that the Court may determine the merits of the States’ claims. . . .

I will update this after 8 PM EST tonight, if/when a minute order is entered from the 6 PM status hearing, before the eminently capable Judge Robart. Onward — now, stay healthy, and feel better — all you lil’ buckaroos!

UPDATED: Valentine’s Day 3 PM EST: The able Judge Robart’s minute order is here — in full — so discovery will now commence, primarily against 45:

. . . .The court concludes that the Ninth Circuit has construed the court’s TRO (Dkt. # [52]) as an appealable preliminary injunction and that further briefing or the submission of evidence concerning a preliminary injunction would not be appropriate in this court during the pendency of Defendants’ appeal. However, the court ORDERS the parties to continue with other aspects of this litigation in accordance with the Federal Rules of Civil Procedure and this court’s Local Civil Rules. If issues or motions subsequently arise that either party believes are inextricably bound up with the injunctive order, the court will address those motions or issues on a case-by-case basis in accordance with the case law set forth above. Finally, the court VACATES the briefing schedule set forth in its February 7, 2017, order. . . .

नमस्ते

Up Next, Out West — In Seattle’s Federal District Courthouse — A Busy Monday Ahead.
February 11, 2017

life-jrobart-trump-2-2017I think this is an exclusive — so please credit it.

Judge Robart has asked for genuinely short briefs (heh!) from each side, on whether the Ninth Circuit decision of Thursday should be treated as having converted his court’s TRO ruling into a preliminary injunction ruling, such that no additional work would be needed at the trial court level, for the able judge to promptly rule on a preliminary injunction. He’s given the parties until Monday to weigh in, with an eight page limit.

. . . .MINUTE ORDER by Judge James L. Robart

At Defendants’ request, the court held a telephone conference concerning the Order Regarding the State of Washington’s February 9, 2017, Letter (“Order”). . . .

During the telephone conference, Defendants asked the court for additional time to respond to the court’s Order. The court heard from counsel for both Plaintiffs and Defendants on this issue.

The court GRANTS Defendants’ request and MODIFIES its Order as follows:

(1) Plaintiffs and Defendants shall each file a separate memorandum no later than 12:00 p.m., Pacific Standard Time (“PST”) on Monday, February 13, 2017.

(2) Each side’s memorandum shall discuss whether the Ninth Circuit has construed the court’s temporary restraining order (“TRO”) (TRO (Dkt. # [52])) as a preliminary injunction, such that additional briefing and possible evidence on a motion for preliminary injunction is no longer required in the district court, see Washington v. Trump, No. 17-35105, slip op. at 7-8, Dkt. # 134 (9th Cir. 2017) (“[W]e believe. . . that the TRO should be considered to have the qualities of a reviewable preliminary injunction.”); or whether the parties should submit additional briefing and evidence in the district court concerning the issue of a preliminary injunction, see Fed. R. Civ. P. 65(b)(3).

(3) The parties shall limit the length of their memoranda to eight pages.

(4) The court RESCHEDULES the telephonic hearing previously set at 11:00 a.m., PST, on Monday, February 13, 2017 (see Order at 2), to 3:00 p.m., PST, on Monday, February 13, 2017. . . .

Now you know. My take? He is likely to enter a preliminary injunction (with nation-wide effect) by late Tuesday — unless Mr. Trump signs a now threatened new order, on Monday — and the parties agree that this litigation is to be stayed (with the TRO intact, indefinitely — while the challenges to 45’s forthcoming new order are litigated). Now you know — with more celestial events afoot this evening — and a sweet baby-girl, in tow, for a sleep-over. . . . smile. . . .

masthead-2-13-2017

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