Transcript of Oral Arguments in Muslim Ban Case Shows Department of Justice Entirely Lost on How to Defend; Trump Fires Acting Attorney General

darweesh_transcriptBefore U.S. District Judge Ann Donnelly issued a temporary restraining order against
Donald Trump and the U.S. Customs and Border Patrol from enforcing a “Muslim ban” — prohibiting travel by green card holders and individuals with refugee status from 7 Muslim-majority countries — a hearing was held in which both attorneys for plaintiff Darweesh and attorneys from the Department of Justice for the government appeared.  Early media reports indicated that the U.S. Attorneys were entirely unprepared and had no defense for Trump’s executive order.  And, yesterday, Trump fired Acting Attorney General Sally Yates, allegedly after “she defiantly refused to defend his executive order closing the nation’s borders to refugees and people from predominantly Muslim countries,” according to the New York Times.

I noticed on the docket today (PDF or live version if you have a PACER account) that the transcript of these oral arguments was ready but not available over the Court’s Web site.  I managed to obtain a copy anyway which I’m now publishing for you all.

Darweesh v. DHS – Transcript of Oral Arguments on Motion for TRO, 1/28/2017 (.pdf)

Some highlights:

  1. There were five attorneys from the government there — four from the U.S. Attorney’s office and one from U.S. Customs & Border Patrol.  Not a single one of them, at any point in the 21 pages of transcript, even remotely attempted to argue that Trump’s order was lawful and the plaintiffs could not succeed on the merits.
  2. The test for whether to issue a stay is a balancing of whether: 1) the requesting party is likely to succeed on the merits, 2) the requesting party will suffer irreparable injury, 3) the opposing party will be injured, and 4) the public’s interest will be harmed.  The only one the government even tried to address was irreparable injury, by saying that Darweesh was already released and therefore couldn’t be harmed.  The judge was not interested.
  3. But, the 3 attorneys for the plaintiff from the ACLU successfully argued that they would likely meet the requirements to proceed as a class-action, and thus were arguing on behalf of everyone who was detained or threatened with deportation under Trump’s new order — so Darweesh being released didn’t end the case.
  4. The judge made clear that her ruling applied to all affected by Trump’s order.  Thus, if at other airports across the country CBP was still detaining people, they were clearly in violation of the court’s order.  And for those who feel that Trump’s order is totally constitutional, the judge specifically ruled that it was likely that plaintiffs could prove otherwise:
  5. The judge at times was clearly irritated with the government’s lack of response to her questions, and at one point told them that they would not be able to speak any longer.say_no_more_fam

Apparently, Trump is upset that his Acting Attorney General refused to defend his executive order.  But the real question is: What defense could they have plausibly given, especially given that apparently Trump gave the Department of Justice no notice of his plans?

If you want your executive agencies to work with you, they have to be kept in the loop.  Even then, however, it will be a hard sell for any attorney to walk into a courtroom with a straight face and say that the executive order by the guy who said he’d ban Muslims isn’t about banning Muslims, but just happens to be directed at 7 almost-all-Muslim countries.

I don’t envy anyone in the U.S. Attorney’s office’s civil litigation division right now.  They’re not getting paid enough for this shit.

“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:

Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

3 thoughts on “Transcript of Oral Arguments in Muslim Ban Case Shows Department of Justice Entirely Lost on How to Defend; Trump Fires Acting Attorney General

Add yours

  1. CNN Producer Sues Feds Over Airport Detention:

    A CNN journalist claims in court he was unlawfully detained over the weekend as a result of President Donald Trump’s controversial executive order banning immigrants from seven countries in the Middle East from entering the United States.

    In a lawsuit filed in the federal court in Atlanta on Monday, Mohammed Abdullah Tawfeeq says he’s traveled abroad for CNN as both a producer and editor for years without incident.

    Tawfeeq, a permanent legal resident of the United States since June 2013, says that under the Immigration and Nationality Act, his status entitles him “to greater procedural protections than non-immigrants/temporary aliens.”

    “The Executive Order has greatly increased the uncertainty involved in current and future international travel for returning lawful permanent residents like Mr. Tawfeeq,” the complaint says. “Defendants have sent conflicting signals regarding how and whether the Executive Order will be applied to permanent residents like Mr. Tawfeeq.”


  2. Did DHS Bully Immigrants Into Signing Away Their Rights?

    Two Muslim men fleeing Yemen to live in the U.S. were coerced into signing away their visas by Customs and Border Protection officers acting on President Donald Trump’s immigration executive order, according to a new lawsuit amended Monday.

    Brothers Tareq and Ammar Aqel Mohammed Aziz of Yemen flew into Washington-Dulles International Airport on Saturday morning on visas issued for immediate relatives of U.S. citizens. They came to be with their father who lives in in Flint, Michigan. When they arrived, the brothers were handcuffed and “forced to sign papers they neither read nor understood” that relinquished their visa status, the lawsuit claims.

    Agents then allegedly stamped “Cancelled” on the brothers’ visas, confiscated documents needed for green cards, and sent them back to Ethiopia—on their own dime.


  3. JFK airport likened to a CIA “black site,” where nobody knows how many have been detained:

    Becca Heller, director of the Urban Justice Center’s International Refugee Assistance Project, likened the John F. Kennedy Airport terminal to a CIA “black site,” where nobody knows how many have been detained.

    “It could be up to hundreds, but we won’t know until we have the list,” Heller told reporters.

    As of Tuesday, Trump claimed on Twitter that 109 have been detained or denied entry into the country, while his own Department of Homeland Security put the number at 721 people who were denied boarding to the U.S., the New York Times reported.

    Five Democratic congressmen from Virginia and Maryland — Reps. Bobby Scott, Don Beyer, Gerry Connolly, Jamie Raskin and John Delaney — corroborated the executive branch had been flouting the two other branches of U.S. government.

    In a declaration to the court, Beyer said he went to the airport “in response to reports that CBP officials enforcing the Executive Order were detaining travelers and, contrary to the TRO, were not permitting them access to lawyers.”
    Spending more than four hours at Dulles, Beyer described the family members of those detained as being “anxious, grief-stricken, and confused.”

    “Attorney after attorney complained to me that CBP would not allow them access to the holding rooms where travelers may have been detained,” the congressman told DCist. “To my knowledge, not a single attorney was permitted access to any detained traveler. My congressional colleagues and I were also denied access to detainees.”

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