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A Justice Department Attorney Had Trouble Defending Trump’s Immigration Ban

They key question at the hearing was whether a federal judge’s temporary restraining order on Trump’s travel ban will remain in place, not whether the ban itself is constitutional.
February 8, 2017, 2:50pm

Department of Justice lawyers struggled from the outset Tuesday as they defended President Trump's immigration ban before skeptical judges on the Ninth Circuit Court of Appeals.

Minutes into the hearing, the lawyer representing the government, August E. Flentje, found himself sidestepping pointed questions from the three-judge panel about what specific threats visa holders from the seven banned countries pose.

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"The president determined there was a real risk," Flentje said.

When asked again, Flentje indicated he didn't have a stronger response prepared because, "The proceedings have been moving very fast."

They key question at the hearing was whether a federal judge's temporary restraining order on Trump's travel ban will remain in place, not whether the ban itself is constitutional. But also discussed was whether Trump's executive order was technically a "Muslim ban."

The Justice Department lawyers argued that it wasn't, since the order does not explicitly mention religion as a criterion for blocking people from coming into the country. Washington state Solicitor General Noah Purcell—the original restraining order came from Washington—pointed out that Trump and his advisers have made "rather shocking" public statements that made it clear the goal of the executive order was to discriminate against Muslims.

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