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  1. Does Trump's Alleged Obstruction of Justice in the Comey Firing Undermine His Muslim Ban Legal Defense? Roger Algase

    Does the bombshell testimony of James Comey on June 8 about the pressure that the president allegedly put on him prior to firing him in order to influence the FBI investigation of alleged illegal ties to Russia have anything to do with with the administration's attempt to defend the legality of the president's "Travel Ban" order (to use his own tweeted description of his order barring almost 200 million citizens of six almost 100 per cent Muslim countries from entering the United States)?

    For a summary of Comey's devastating testimony concerning possible obstruction of justice by Trump in trying to impede or influence the FBI investigation of his top aides, (discussed in more detail below) see:

    According to the distinguished young legal scholar Joshua Matz, a former Harvard Law Review editor, law clerk to Supreme Court Justice Anthony Kennedy, and author of an amicus brief that was filed with the 4th Circuit on behalf of a group of Constitutional law scholars, the Comey firing could have everything to do with the Muslim Ban (which is the most accurate term of all - how could banning 200 million Muslims for whatever reason be anything other than a "Muslim Ban"?) litigation.

    Why is this so? Matz explains in a May 9 article in The Guardian commenting on the president's "National Security" argument in favor of the ban as follows:

    "It's true, of course, that the president typically enjoys a judicial presumption of good faith and regularity. But surely there comes a point where reliance on this rule amounts to judicial abdication - and Trump's continuing bad faith and irregularity suggest we have crossed that Rubicon. Even if we haven't, the nature of presumptions is that they can be rebutted, and here the evidence of Trump's bad faith toward American Muslims is overwhelming."

    However, it is one thing to make a finding of presidential bad faith which is directly connected to the subject of litigation actually before the court.

    But could alleged presidential bad faith in an unrelated matter, in this case the firing of James Comey in order to stop or impede an FBI investigation into possible illegal ties with Russia by the president and/or his top officials, also be relevant to the question of whether the president acted in good faith in the Muslim ban case which is now before the Supreme Court?

    Matz, in another article written the day after the one quoted above, argues that it could be relevant.

    In a May 10 article entitled:

    Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban

    Matz writes:

    "Having fired the man in charge of significant national security and intelligence policies - and having done that while that man led a criminal investigation involving foreign influence at the highest levels of the U.S. government - Trump has unquestionably forfeited any claim to a presumption of regularity or good faith.

    I expect that the judges of the Fourth Circuit Court of Appeals, and their law clerks, are paying close attention to these events. Norms of judicial rhetoric likely wouldn't permit any mention of Comey in an opinion. But it's inconceivable to me that the Comey firing won't frame their reactions to Trump's insistence that presumptions of deference compel them to uphold his Muslim ban."

    At the time when Matz wrote the above, the Muslim Ban case was still under review by the 4th Circuit, and James Comey had not yet issued his devastating Congressional testimony about Trump's overt and blatant attempt to interfere with the FBI investigation even though he did not expressly order Comey to halt it.

    A reading of the relevant statute shows why it will not be an easy task for the president and his defenders to make the words "Obstruction of Justice" disappear from the discussion of his firing of James Comey, not as a political phrase, but as a legal one.

    18 U.S.C. Section 1503 provides in relevant part:

    (a) any threatening letter or communication, influences, obstructs or impedes, or endeavors to influence, obstruct or impede, the due administration of justice, shall be punished as provided in subsection (b).

    The above makes it obvious that the statute does not require that someone actually impedes an investigation, such as by ordering the head of the FBI to drop the matter, but only that that the person "endeavors to influence" it.

    No one who has the slightest familiarity with the plain words of the English language can argue with the obvious fact that if James Comey's June 8 testimony is to be believed, the president's alleged statements to him in Oval Office conversations were, at the very minimum, attempts to influence the FBI investigation.

    As Matz's above quoted statements make clear, the heart of the administration's arguments in defense of the Muslim ban is the presumption of regularity based on the theory that the president is carrying out the normal responsibilities of his office, not only with regard to a particular alleged "National Security" finding in an immigration-related matter, but also, in his oath of office, to follow and obey the laws of this country in general, including the criminal laws of the United States.

    If the Supreme Court is faced with evidence raising very serious doubts about whether the president is in fact carrying out the above responsibilities of his office in a matter as important as this one, even if it is not directly related to the immediate issue at hand, how can the Court be expected to give the president the benefit of any presumption of regularity or good faith that normally might come with the high office that he now occupies, no matter what the subject of the litigation in question might be?

    This is not to say that the Supreme Court should refuse to consider Trump's asserted "National Security" justification for the Muslim ban on the merits, for whatever they may be worth.

    But, in the light of the Comey firing and the very serious questions of obstruction of justice by the president which it presents, any claim that the president comes into the High Court with a halo of infallibility, also known as a presumption of regularity or good faith, concerning the Muslim ban or any other matter involving presidential discretion, merely by virtue of the office which he holds, and without any regard to whether he is in fact conducting himself according to the requirements of law which govern that office, has, very arguably, been completely demolished.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants receive work visas and green cards without to ethnicity, religion or national origin, in the true spirit of American fairness and equality which is now under intense attack from the Trump administration.

    Roger's practice is concentrated primarily in H-1B specialty and O-1 extraordinary ability work visas; and in green cards though Labor Certification and through marriage or other immediate family relationship with U.S. citizens. His email address is

    Updated 06-09-2017 at 10:55 AM by ImmigrationLawBlogs

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