President Donald Trump on Wednesday offered yet another account of the drafting of his controversial travel ban, telling a group of police chiefs that he had wanted to delay the effective date of the order for a month to give people a chance to plan.
But he said law enforcement officials had advised that such advance notice would trigger a dangerous rush of people to get into the country before the ban took effect.
“I wanted to give, like, a month. Then I said what about a week?” Trump said at the Major Cities Chiefs Association winter conference. “They said then you’re going to have a whole pile of people, perhaps, perhaps, with very evil intentions coming in before the restrictions. So there it is, folks. It’s as plain as you can have it.”
The comments raised more questions about the chaotic rollout of Trump’s ban on travelers from seven predominantly Muslim countries, which inspired protests nationwide, upended the U.S. immigration system and has triggered a contentious court fight over the limits of presidential authority.
Judges on the 9th U.S. Circuit Court of Appeals on Tuesday raised the issue of the order’s confused creation during arguments over the ban and suggested that the order should be rewritten, given that the administration has revised how it should be applied multiple times since its Jan. 27 release.
“Why shouldn’t we look to the executive branch to more clearly define what the order means, rather than have to look through the lens of subsequent interpretations?” one of the judges hearing the case, Richard Clifton, who was appointed to the bench by President George W. Bush, asked as he sought to clarify whether the order was intended to exempt lawful permanent residents. The government’s lawyer, August Flentje, assured him that permanent residents – green-card holders – were not covered by the order.
The court announced Wednesday that it had not yet reached a decision on a government request that it stay a district court’s ruling that stopped the order’s enforcement nationwide. The Department of Homeland Security quickly announced that it was returning to its usual screening procedures for citizens of the seven countries after U.S. District Judge James Robart issued his order.
In some sense, criticizing the judges before they rule is a bit like claiming the election is rigged before it happens – it then looks a little silly if you win.
Josh Chafetz, Cornell Law School
White House Press Secretary Sean Spicer said Wednesday that reissuing the president’s order was not under consideration and that further guidance already had been issued about the exemption of legal permanent residents from its application.
“We wanted to make it very, very clear that legal permanent residents were not included in that,” Spicer said.
On Tuesday, Homeland Security Secretary John Kelly, addressing pointed questions from members of Congress about the rollout, said he was chagrined by the confusion over how the order would deal with permanent residents and military translators.
Kelly acknowledged before the House Committee on Homeland Security that the administration had had to make several revisions to the order and issue new guidance to customs officers at U.S. airports in the 24 hours after the order was signed. He said he should have held up the release of the order until those details had been worked out.
“In retrospect, I should have – this is all on me, by the way – I should have delayed it just a bit so that I could talk to members of Congress, particularly to the leadership of committees like this, to prepare them for what was coming,” Kelly said.
The administration has been on the defensive since the order was signed, and the several court battles against the order have overwhelmed the Trump administration in its first weeks.
Trump has defended his executive order as necessary for the nation’s security and blasted the judges weighing a challenge to the order as being too political.
“I watched last night, in amazement, and I heard things that I couldn’t believe, things that really had nothing to do with what I just read,” Trump told the police chiefs. “And I don’t ever want to call a court biased, so I won’t call it biased. And we haven’t had a decision yet.”
I think it’s sad. I think it’s a sad day. I think our security is at risk today.
President Donald Trump
Legal scholars say Trump may be taking a risk criticizing the judges before they rule on his case.
“In some sense, criticizing the judges before they rule is a bit like claiming the election is rigged before it happens – it then looks a little silly if you win,” said Josh Chafetz, a professor at Cornell Law School. “But in another sense, criticizing the judges beforehand is different, because it’s a form of signaling to them that you intend to make their lives difficult if they rule against you.”
While Trump’s approach is much blunter, he is far from the first president to publicly push a judge to rule in his favor, said Chafetz, an expert on constitutional law and legislative procedure.
Former President Barack Obama made public statements arguing that the legal challenges to the Affordable Care Act were silly and shouldn’t be taken seriously by the Supreme Court. In saying what he did, Chafetz said, Obama was signaling the court that he was prepared to have a public political fight – obviously, one he thought he could win – if the court should rule against him. Both times, the court ruled in his favor.
“So it may be that Obama was acting with significantly more astute political judgment,” Chafetz said. “But in a broader sense, presidents publicly pushing judges to rule the way they want them to is fairly familiar.”
Still, Trump’s nominee to replace the late Justice Antonin Scalia on the high court, 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch, on Wednesday called Trump’s criticism of judges “disheartening” and “demoralizing.”
Anita Kumar contributed to this report.