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  1. Could Misrepresenting the Purpose of Trump's Muslim Ban Order be Grounds for Impeachment as a Fraud Upon the Court? Roger Algase

    On the afternoon of May 13, the Washington Post published an oped opinion by Harvard Law School professor Laurence Tribe, one of America's best known and most highly respected legal scholars, calling for Donald Trump's impeachment because of his alleged obstruction of justice by firing FBI Director James Comey.

    According to Professor Tribe, Trump's allegedly "phony justifications for the firing", in order to conceal the real reason for that action, namely impeding the investigation into alleged illegal ties with Russia by Trump or his top aides, were among the actions that, In Tribe's words, 'rise to the level of 'obstruction of justice'".

    See: Laurence H. Tribe: Trump must be impeached. Here's why.

    (I do not have a direct link to this article. Interested readers can go to Google.)

    While Professor Tribe did not mention anything about Trump's executive orders or other immigration actions, an additional possible ground for impeachment, based on similar reasoning, might very well be found in the claim made before the 4th Circuit Court of Appeals by Department of Justice Lawyers at Trump's direction to the effect that the president's latest executive order barring 100 million or more citizens of six almost 100 per cent Muslim countries from entering the United States, solely because of their nationality, was not a "Muslim ban", but was allegedly issued for valid national security reasons.

    See: ABA Bar Journal:

    DOJ lawyer tells 4th Circuit that Trump's travel order 'is not a Muslim ban'


    http://www.abajournal.com/news/artic...l_order_is_not

    As I have pointed out in previous recent Immigration Daily comments on this issue, aside from the fact that numerous experts in the field have challenged the genuineness of the purported national security justification for the entry ban,

    https://thinkprogress.org/diplomats-...n-bacc2d360690

    the Trump administration has engaged in egregious bad faith by claiming a national security justification for the ban in the face of what what Virginia Attorney General Mark Herring (no connection with the plaintiff in the 3rd Circuit case discussed below) has aptly called "a mountain of evidence" that the entry ban was motivated by Trump's hostility against Muslims and the Muslim religion.

    Trump has said and done almost everything that he can attack Muslim immigrants, thereby also impeding the free exercise of religion by Muslim US citizens guaranteed under the 14th Amendment. He has done this both as a candidate and after he became president.

    See my recent ilw.com comments on Trump's December 7, 2015 call for a worldwide ban on entry to the US by Muslim from any country, a proposal which remained on his official website for the next 17 months, right up until May 8, 2017, when it was suddenly removed shortly after the 4th Circuit oral argument!

    However, evidence that Trump's seven and six country entry bans were motivated by extreme animosity toward Muslims and their religion is not just based on one speech. The entire history of these two executive orders, comprising statements and actions that Trump has taken after becoming president as well as before, is laid out in a damning April 19 report by the highly respected Brennan Center for Justice at the New York University School of Law called:

    The Islamophobic Administration

    https://www.brennancenter.org/public...administration

    No one who reads this report with an objective and unbiased mind can possibly doubt that Trump's entry ban orders were directed against at least 100 million Muslims because of their religion, not because of any genuine national security concerns.

    The introduction to the report lists five ways, including but not limited to the Muslim bans themselves, in which the Trump administration:

    "through both speech and policy" has been "tangibly harming the American Muslim community".

    The report lists these five ways:

    "the use of anti-Muslim rhetoric; the elevation of Islamophobic staff members to key positions in the White House; the ban on visitors from seven Muslim-majority countries from entering the country; the goal of making vetting procedures 'extreme' for potential visitors and immigrants; and a lack of response to the rise in hate crimes targeted at Muslims and other groups."


    Therefore, there is at least a plausible argument that by instructing his lawyers to argue before the Circuit Court judges that his executive order was "not a Muslim ban" Trump might have directed these lawyers to attempt a fraud upon the court by misrepresenting the real motivation for the six country ban.

    In a 2005 3rd Circuit Court of Appeals case, Herring v. U.S., 424 F.3rd 384, cert. denied 547 U.S. 1123, the federal government was accused of participating in a fraud upon the court by allegedly using bogus national security grounds to withhold evidence which could have led to a heavier judgment against it in an air accident case than the amount which the plaintiffs eventually settled for.

    Even though the government was ultimately successful in defending against fraud upon the court charges in that case, the Court discussed the elements of this form of misconduct which could arguably have a great deal in common with the Trump administration's conduct in the 4th Circuit entry ban case, and possibly other pending federal court actions involving his entry ban executive orders as well - enough resemblances to be worth consideration by a Congressional impeachment panel.

    The Herring case involved a US military plane crash which had taken place in 1948 (almost 60 years before the 3rd Circuit's above decision!) in which the lead plaintiff's father, a civil engineer aboard the plane, had been killed. The plaintiff's mother and two other widows had sued the United States under the Tort Claims Act, but had not been able to gain access to Air Force documents relating to the crash because the government had claimed that they were privileged, because the plane was allegedly on a highly secret mission and that making the report of the crash available would compromise national security.

    As a result, and after going all the way up to the Supreme Court, which remanded the case to the District Court in U.S, v. Reynolds, 345 US 1 (1953) for further fact finding in which the government was ordered to produce the report so that the court could look at it and decide whether the claim of privilege was valid, but still refused to produce it the report, the plaintiffs finally settled the case for less than the full amount of their claim.

    In 2000, the lead plaintiff found out that the government had declassified the report in question, and she and the other plaintiffs then brought an action to vacate the settlement and reopen the case on the grounds that by claiming privilege with respect to the crash report, the government had committed a fraud upon the court.

    In the new lawsuit, the plaintiffs contended that the declassified report did not contain anything which would have revealed military secrets or compromised national security, as the government had claimed it did in the original lawsuit a half century before.

    After reviewing the now declassified report, the 3rd Circuit determined that there was in fact military information in the report which justified the government in asserting privilege, and that therefore the claim of fraud upon the court failed. The lawsuit to reopen the settlement decision was dismissed.

    Obviously, there are differences between the above case and the current litigation in the 4th Circuit and other federal courts over the legality of Trump's Muslim ban executive order. In the current litigation there is no claim of government privilege based on secrecy. Nor is there any mystery about what the alleged justification that the president is claiming for the executive order is, since the reasons for issuing the president's order are set forth in full detail in the order itself.

    But the Herring case, as well as the 1953 Supreme Court decision in the original lawsuit remanding the case to the District Court for further fact finding which was quoted at length in the 2005 3rd Circuit decision, both stand for the proposition that the courts do not have to accept the federal government's reasons for taking or refusing to take certain actions, even when a claim of national security is involved, if the national security claim is made with intent to deceive.

    In the Herring case, the effect of the government's alleged deceptive claim of privilege on national security grounds was to induce the plaintiffs to settle a tort case for 25 per cent less than they had asked for in the complaint.

    In the case of Trump's six (originally seven) country Muslim entry ban, the effect of the Trump administration's allegedly fraudulent use of national security and anti-terror justifications in order to impose a ban on entry to the US by at least 100 million members of a religion toward which Trump showed intense hostility during his campaign, and at least two of the highest ranking advisers he appointed after he took office as president (Stephen Bannon and Michael Flynn) openly regarded as fundamentally evil, has had infinitely greater ramifications than the settlement of a tort suit.

    It has sent a clear message, not only to America's 3 or 4 million Muslim US citizens and legal residents, but to Muslims in every country in the world, whether or not on the banned list (which, by the terms of the executive order itself is not necessarily limited to just six countries - it contemplates adding many others to the list - guess which religion will be in the majority in those countries as well!) that their religion is disfavored in America in violation of our Constitution.

    The order also sends a message that people who belong to that religion, merely by that fact, will be subject to suspicion and special scrutiny under the name of "extreme vetting" if they seek to enter the US, and that members of that religion who are US citizens may also become subject to special surveillance and observation, as Trump also threatened repeatedly during the campaign.

    With this background, and in view of the enormous consequences of this executive order if it is upheld, the Trump administration is under an even greater obligation to be honest and truthful with the federal courts about the real reasons for issuing the six country entry ban order.

    Given the enormous evidence that is already in the record showing that the president is not adhering to that standard of honesty and good faith, either in the alleged national security justifications for the ban that he is asserting in court, or in his lawyers' even more dangerous and authoritarian argument that the courts have no power to look at the motivation for the ban at all, the question of whether the president is responsible for an attempt to commit a fraud upon the court cries out for investigation leading up to impeachment proceedings.
    _______________________________
    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 from diverse parts of the world, without regard to their ethnicity, religion or nationality, obtain work visas and green cards.

    Roger's immigration law practice is primarily concentrated in H-1B specialty occupation, O-1 extraordinary ability and J-1 training work visas; and in green cards through labor certification and opposite sex or same sex marriage. His email address is algaselex@gmail.com


    Updated 05-14-2017 at 11:10 PM by ImmigrationLawBlogs

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