As litigation over the Trump immigration vetting executive order moves ahead — whether in the form of a continuing court fight over the existing order or a future fight over a replacement order — opponents are planning to use the case as an opportunity to make an unprecedented intrusion into the presidency and the president’s political operation. And that could potentially create enormous problems for the president, perhaps even reminiscent of those faced by Bill Clinton in the 1990s.

The recent 9th Circuit opinion focused on two main constitutional issues with the Trump order: 1) whether the order violated the right to due process, and 2) whether it amounted to unconstitutional religious discrimination. The three-judge panel made clear (in a much-criticized opinion) that it believed the Trump order violated due process. But the judges but chose to “reserve consideration” on the question of religious discrimination.

Why reserve consideration? The court noted that the merits of the case have not yet been “fully briefed,” and therefore there was not enough evidence to judge Washington State’s allegation that the Trump order was “intended to disfavor Muslims.” Washington State raised “serious allegations” and presented “significant constitutional questions” on the issue of religious discrimination, the court said, but since the judges had already decided to keep in place a lower court restraining order against the Trump administration, they concluded it was not necessary to prove at this moment that the order was also motivated by anti-Muslim bias.

But that is coming. When the case eventually goes to a trial court, Washington State plans extensive discovery into the president’s state of mind when the order was issued, as well as the state of mind of key presidential advisers. Washington State lawyers told the 9th Circuit they intend to find out what was “said in private” about the executive order, which suggests state lawyers will seek to depose and obtain documents from the president and his inner circle.

Washington State lawyers explained their intent in oral argument before the 9th Circuit February 7. When the subject turned to religious discrimination, one judge, Richard Clifton — the only judge on the three-judge panel appointed by a Republican — expressed skepticism that the order was based in religious animus. Noting that the Trump order affected less than 15 percent of the world’s Muslim population, Clifton said to Washington State Solicitor General Noah Purcell, “I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.”

“We do not need to prove that this order harms only Muslims, or that it harms every Muslim,” Purcell responded. “We just need to prove that it was motivated in part by a desire to harm Muslims.”

“How do you infer that desire if in fact the vast majority of Muslims are unaffected?” asked Clifton.

“Well, Your Honor, in part, you can infer it from intent evidence,” said Purcell. “I mean there are statements that we’ve quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims, given that we haven’t even had any discovery yet to find out what might have been said in private.”

So far, Washington State has based its religious discrimination claim on a cherry-picked set of public statements from the presidential campaign. The state’s original lawsuit said, “Prior to his election, Donald Trump campaigned on the promise that he would ban Muslims from entering the United States.” It went on to quote Trump’s December 7, 2015 statement in which he called for “a total and complete shutdown of Muslims entering the United States.” (The suit left out the part of Trump’s statement suggesting the ban would be temporary — “until our country’s representatives can figure out what is going on.”)

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The Washington State lawsuit essentially treated Trump’s December 7 statement as his last words on the matter, rather than his first. The suit contained no mention of the fact that Trump began narrowing and amending his call within hours of making it. American citizens would be exempted. Members of the military would be exempted. Others with a right to be in the United States would be exempted.

Then, as the campaign progressed, Trump dramatically narrowed his proposal into a call to temporarily pause entry into the U.S. for people from a selected group of terrorism-plagued nations. By the time Trump made his much-watched speech on immigration in Phoenix on August 31, 2016, he had come up with a proposal much like the executive order that eventually resulted:

As soon as I enter office, I am going to ask the Department of State, homeland Security and the Department of Justice to begin a comprehensive review of [terrorism cases] in order to develop a list of regions and countries from which immigration must be suspended until proven and effective vetting mechanisms can be put into place. Countries from which immigration will be suspended would include places like Syria and Libya.

Trump, in other words, crafted a policy during the campaign that specifically targeted countries with a terrorism problem and governments unable to help the United States vet immigrants. But the Washington State lawsuit ignored that. Its filing with the 9th Circuit, for example, said simply, “Donald Trump campaigned on the promise to impose ‘a total and complete shutdown of Muslims entering the United States.’ He repeatedly defended and reiterated this promise.” And that was that. It would be hard to imagine a more misleading description of what happened during the campaign. But that is what Washington State said.

Trump has a strong case that the executive order is not religious discrimination. First, it covers just 12 percent of the world’s 1.6 billion Muslims. Second, it covers just seven of the world’s 49 Muslim-majority countries. And third, its selection of covered countries was based on action by Congress and the Obama administration that was not challenged as religious discrimination.

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Nevertheless, Washington State now proposes to pursue discovery into Trump’s state of mind to prove its “Muslim ban” allegation. “We haven’t had any discovery yet, and realistically it will take some time to gather that sort of evidence beyond the public statements,” Purcell told the 9th Circuit.

“I’m not aware of any executive order quite like this one, that there’s so much evidence, before there’s even been any discovery, that it was motivated by animus, religiously targeted, and just utterly divorced from the stated purposes of the order,” Purcell told U.S. District Court Judge James Robart on February 3.

What could discovery entail? Certainly Washington State lawyers would want to question the president and staff around him, both in the White House and in the campaign. The lawyers would also seek a broad range of documents.

The question is whether that could ever happen. I talked to two Republican lawyers, veterans of the Justice Department and the White House Counsel’s Office, and their answer was: No way. Or probably no way.

“I don’t think it’s possible for all kinds of reasons,” said one lawyer. “First, the argument is going to be that everything that was said in private is covered by executive privilege.”

“It’s also the case that someone, somewhere in the judicial system is going to think, wait a minute: If we allow discovery into this, we are going to allow discovery into everything that happens in the Trump administration — and future administrations.”

“It’s also the case that it’s irrelevant. The notion that there is a legally effective document and we’re going to look behind it to subjective intent is crazy and legally irrelevant.”

While that seems a solid case for presidential conversations, I asked, what about conversations that took place during the campaign, when Trump was not president?

“There you might have a better shot at saying those conversations were not covered by executive privilege,” the lawyer replied. “But Trump can say, 1) it’s irrelevant, and 2) it would be so ridiculously intrusive that you can’t do it.”

“We went through a lot of this with the Clintons,” the lawyer said. “And there is a very high bar for suing the president. In the Paula Jones case, they were suing over his private conduct. If you’re suing over an official action, you just don’t get discovery of this kind.”

I asked another Republican legal veteran. “Under normal circumstances, the chances that a plaintiff in a civil lawsuit would be able to obtain discovery from the president and his closest advisers would be next to nil,” he said. “Not only is there an extraordinary burden of justification that courts insist on before distracting the nation’s chief executive, but also most such material is clearly protected by executive privilege. Things can be less predictable when a case becomes a political cause celebre, but I’d be shocked if we ever see presidential depositions or document discovery in connection with the immigration executive order.”

I asked the same follow-up as earlier: What about the time before Trump became president? “Executive privilege would not, as a technical matter, apply to anything before Trump was sworn in, but figuring out who to take discovery from and how — even where any documents would be located or who would have them — would be difficult. And I still don’t see depositions being allowed of the president himself or his current advisers. The Paula Jones case shows that it’s not impossible, but the plaintiff really has to establish that the testimony is central to their case and can’t be obtained from any other source. A fishing expedition for evidence that would be merely cumulative of what’s already in the public record ordinarily should not be allowed.”

The fact that both lawyers mentioned the Jones case should probably set off concerns in TrumpWorld. There’s a huge and critical difference between the two cases — the Jones matter dealt with Clinton’s private behavior, while the executive order case deals with Trump’s official business. But the Jones case bedeviled the Clinton White House for a long time and eventually resulted in impeachment for a related process crime, that is, Clinton’s false testimony under oath.

Some of Washington State’s case against the Trump order would likely be mooted if Trump issues a new, replacement executive order. But while a new order would fix some problems in the original — removing any confusion about an exemption for legal permanent residents, for example — it seems unlikely that would deter Washington State, and many others, from suing the president again on the allegation that the order is based on religious discrimination.

The short version of that is: Even if Trump issues a new executive order, he’ll still be sued.

The administration’s case is strong, perhaps overwhelmingly strong. Just one data point: To find against the president, the 9th Circuit had to literally ignore the statute (8 USC 1182(f) from the Immigration and Naturalization Act of 1952) that most specifically gives the president the authority to do what he did. Many observers, and not just Republicans, believe that if the substance of the executive order case makes it to the Supreme Court — a court with nine members, including current nominee Neil Gorsuch — the president will win.

But legal cases can take odd turns and end up in places no one expected. And there is no doubt that Trump’s antagonists, who have taken to styling themselves The Resistance, view lawfare as one of their most effective strategies to weaken the president. Even if Trump fixes his executive order’s problems, there could still be trouble ahead.

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The intensity of Democratic and left-wing opposition to President Trump is taking a toll even on congressional Republicans.

“It’s just a giant hassle,” said Rep. Dave Brat, R-Va. “Everybody is losing it on the left.”

“The world is upside down,” said Rep. Walter Jones, R-N.C. “What is going on is the frustration of the American people, on both sides.”

Republican lawmakers have faced raucous town halls with anti-Trump protesters shouting them down. Rep. Tom McClintock, R-Calif., had to leave on with police escort. “Do your job!” demonstrators jeered at House Oversight Committee Chairman Jason Chaffetz, R-Utah, after he noted the president was exempt from federal conflict-of-interest laws.

02/12/17 5:29 PM

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