Why Steve Bannon’s Next Act Revolves Around Alabama And The Religious Right

Mike Theiler / AFP / Getty Images

Steve Bannon is out of the White House, back at Breitbart, and out to assert his political authority once and for all. But his first target — this month’s Republican runoff in the Alabama special Senate election — is a weird fit.

First, Bannon and Breitbart, long used to pumping up underdogs, are going with the frontrunner: former state Supreme Court Chief Justice Roy Moore, the top vote-getter in the August primary and the leader in recent polls.

Second, Bannon and his news site — which has a slightly less heated, more complicated view of LGBT issues than some conservative outlets, and is infamous for stunts like attacking House Speaker Paul Ryan for sending his children to a religious school — have forged an odd-couple alliance with the religious right.

And then there’s the fact that the move seems grounded in trying to re-establish Breitbart and Bannon as a viable threat to the Republican establishment. Backing Moore bucks President Donald Trump, who has endorsed Sen. Luther Strange, the GOP establishment favorite who was appointed to the seat earlier this year.

A low-stakes Senate primary isn’t a place where the Breitbart can expect to reap millions of readers, but it does offer something else: The former White House strategist has set the groundwork to claim credit for victory.

“The audience doesn't give two shits about Roy Moore vs. Luther Strange,” said a former Breitbart employee who worked with Bannon. “There’s a very serious gap between what Bannon’s interests are and what Breitbart's interests are as a business and a site.”

While the contest is clearly a priority for Bannon, the former Breitbart employee said most regular national readers tend to care little about his pet races — preferring to click on tried-and-true conservative web content about issues like illegal immigration — and that if the site becomes too critical of Trump it risks alienating the audience. Despite Trump’s endorsement for Strange, Breitbart’s stories have painted Moore as the true champion of the president’s agenda.

“The audience likes Trump more than it likes Breitbart,” said the former employee.

Breitbart’s traffic in July dropped 32% from the year prior, according to comScore (an understable dip after an election year, to be sure).

Still, the past few weeks have been reminiscent of Bannon’s Breitbart of yore — a crusading, unyielding site taking on the Republican establishment and championing candidates seeking to topple GOP incumbents. In classic Breitbart form, Bannon has dispatched bomb-throwing political writer Matt Boyle to Alabama to file a series of pieces in support of Moore.

Whether Breitbart — or really, any one site — be a difference maker in the race is more a source of skepticism. “This town has created a monster,” one Washington-based GOP operative told BuzzFeed News. “The way they write about him, it’s like he’s the second-coming. But pick any random state, they don’t know who Steve Bannon is.”

But this is where Bannon wants to be.

“If he’s seen as the power outside manipulating events, then he’s a happy camper,” said the former Breitbart employee.

In an interview with CBS set to air in full on Sunday’s 60 Minutes, Bannon told Charlie Rose that his media image is “pretty accurate,” adding that he’s a “street fighter.” When Rose countered that Bannon is “more than that,” Bannon demurred. He said that his “purpose is to support Donald Trump” and “to make sure his enemies know that there's no free shot on goal.”

This is not the first time Breitbart and the religious right have found common cause or a common candidate, though they typically speak for different constituencies within the conservative movement. Breitbart’s no-holds-barred approach is more provocative, racially charged, and far less wholesome than the messaging strategies employed by evangelical groups. And the site’s piece last year shaming Ryan for sending his children to a Catholic school isn’t the kind of journalism that Christian conservatives generally endorse.

Indeed, Bannon told Rose that he disagreed with the Catholic Church’s position on DACA — attributing the church's more liberal immigration position to the "economic" interests of the church. "They have an economic interest in unlimited immigration, unlimited illegal immigration. And as much as — as much as I respect Cardinal Dolan and the bishops on doctrine, this is not doctrine," he said. "This is not doctrine at all.

But occasionally, there has been overlap in the objectives of Breitbart and the religious right.

“I remember the last time it happened: the Missouri Senate race in 2012,” said one Republican strategist watching the Alabama contest closely.

Todd Akin emerged from a competitive GOP primary with help from evangelicals and from Democratic incumbent Claire McCaskill, who highlighted his ultra-conservative views in an ad because she suspected he would be her weakest general election opponent. Sure enough, Akin’s campaign later imploded after he asserted in an interview that “legitimate rape” rarely causes pregnancy.

The Republican establishment soon was walking sideways from Akin — but not Breitbart. “Mainstream Media Cover Akin's Gaffe Non-Stop But Ignore Biden's 'Chains' Blunder,” read one headline on the website. “It’s also worth noting that Akin likely meant ‘forcible rape’ when he said ‘legitimate rape,’” Breitbart’s John Nolte wrote in another piece. “He claims he misspoke, and it makes sense that what he meant was to exclude consensual sex that the law later qualifies as rape, such as statutory rape.”

Former Alabama Chief Justice Roy Moore.

Stringer / Reuters

Akin is not a perfect comparison, though. Moore has a profile with national activists, thanks to his highly publicized court battles (over a statue of the Ten Commandments and federal court rulings on same-sex marriage). Despite Strange’s head start as the appointed incumbent, Moore didn’t start primary season as a heavy underdog, and this is an intra-party primary, not a general election. And Akin was notably exposed as being not ready for prime time, whereas Moore has yet to inflict any real damage on his campaign.

The mutual allegiances in those previous races also were not part of any noticeably concerted effort.

Over the past several months, Breitbart has hardly said a critical word about the president. But the Alabama race might offer Bannon a case study in how far he can push Trump from outside the White House. Trump tweeted in support of Strange during the primary, but congratulated both Moore and Strange for heading into the runoff, calling it an “exciting race.”

For some conservatives who soured on the site as it became the mouthpiece of the Trump movement, the fact that Breitbart has veered from the president in the Alabama race offers renewed hope that it may in the future become more critical.

“I hope they will go back to where they were prior to becoming intimately associated with Trump,” said conservative talk show host Steve Deace, who called Moore a personal friend. “What’s pleasing about it is not so much that they weighed in for Judge Roy Moore, but that they did it at the expense of the candidate that was backed by Donald Trump.”

Conservative media members say they expect Bannon to use Breitbart’s platform pretty much as he already has — to attack his enemies in the White House, Mitch McConnell, and Ryan.

“If Moore wins, Steve can say that he was a difference maker, that this is a loss for the establishment, and reset his relationship with the president,” said Kurt Bardella, who until last year worked as a spokesman for Breitbart News.

A spokesperson for Moore declined to comment. A spokesperson for Breitbart declined to comment.

The second Bannon era also may mark a shift for Breitbart. A few months ago, the site was seeking to more or less enter the mainstream media by way of securing permanent press credentials through the US Senate Daily Press Gallery, a board of correspondents that controls media access to Capitol Hill. After a months long battle, Breitbart was ultimately denied press passes.

At the time, a person familiar with the matter told BuzzFeed News that winning congressional press passes was the first step to Breitbart’s ultimate goal of joining the White House Correspondents Association.

That’s a goal Bannon is unlikely to care about.

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Mike Pence Will Skip A Big Michigan GOP Conference After All

Vice President Mike Pence

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Vice President Mike Pence will skip a prime politicking opportunity this month in Michigan.

Sarah Anderson, a spokesperson for the Michigan Republican Party, told BuzzFeed News that Pence is not attending the Mackinac Republican Leadership Conference — a huge gathering of top battleground state activists and powerbrokers that Pence had shown interest in joining.

“Unfortunately, the vice president has another commitment and will not be able to join us on the Island,” Anderson wrote in an email. She added that Pence never confirmed he would attend.

In the past, the biennial event at Mackinac Island’s historic Grand Hotel — set this year for Sept. 22-24 — has functioned as an audition stage for presidential hopefuls. The possibility of a Pence appearance surfaced this summer, around the time of a New York Times report that emphasized the vice president’s full schedule of political events in the context of a future White House bid, perhaps as soon as 2020. (“We hope he comes, but we don’t have anything confirmed yet,” Anderson told the Detroit News in early August.)

Other Republicans, including Ohio Gov. John Kasich, Arkansas Sen. Tom Cotton, and Nebraska Sen. Ben Sasse, were mentioned in the Times piece. But the focus on Pence’s activity raised eyebrows, given that President Donald Trump is up for re-election in 2020. Pence later issued a forceful denial that he was out to undermine Trump.

“Just too much to do back in Washington,” a Pence adviser told BuzzFeed News when asked Tuesday about the Mackinac trip. “Particularly with disaster relief, debt ceiling, budget, tax reform, etc. … We look forward to helping the Michigan GOP and their gubernatorial and Senate nominees as we approach the 2018 elections."

Among those who will speak at the conference: Education Secretary (and Michigander) Betsy DeVos, Missouri Gov. Eric Greitens, and former Rep. Jason Chaffetz of Utah.

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Obama Calls Trump's Plan To Phase Out DACA "Cruel"

Former President Obama with former Vice President Joe Biden and Diana Calderon, a student who has benefited from DACA, in 2015.

Susan Walsh / AP

Former President Obama on Tuesday slammed plans to phase out deportation protections for undocumented immigrants who were brought to the US as children "wrong," "self-defeating," and ultimately, "cruel."

"To target these young people is wrong – because they have done nothing wrong," Obama wrote in a Facebook post hours after Attorney General Jeff Sessions announced plans to end the Deferred Action for Childhood Arrivals program, or DACA. "It is self-defeating – because they want to start new businesses, staff our labs, serve in our military, and otherwise contribute to the country we love. And it is cruel."

In June 2012, Obama used executive action to provide temporary protection from deportation to undocumented immigrants who were brought to the US as children. There are an estimated 800,000 DACA beneficiaries who are commonly referred to as "DREAMers."

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Obama acknowledged in his statement that while immigration can be a "controversial topic," all Americans "want safe, secure borders and a dynamic economy" and can have "legitimate disagreements about how to fix our immigration system."

"But that’s not what the action that the White House took today is about," Obama wrote.

This is about young people who grew up in America – kids who study in our schools, young adults who are starting careers, patriots who pledge allegiance to our flag. These Dreamers are Americans in their hearts, in their minds, in every single way but one: on paper. They were brought to this country by their parents, sometimes even as infants. They may not know a country besides ours. They may not even know a language besides English. They often have no idea they’re undocumented until they apply for a job, or college, or a driver’s license.

Obama went on to argue that dismantling DACA is "contrary to our spirit," and "to common sense." He urged members of Congress to protect DACA beneficiaries and disagreed with the Trump administration's claim that ending the program will provide more jobs for those in their age group.

"Kicking them out won’t lower the unemployment rate, or lighten anyone’s taxes, or raise anybody’s wages," Obama wrote.

This is the second time the former president has released a statement since Trump took office in January – the first was to defend his signature Affordable Care Act.

"Ultimately," Obama wrote on Tuesday, "this is about basic decency. This is about whether we are a people who kick hopeful young strivers out of America, or whether we treat them the way we’d want our own kids to be treated. It’s about who we are as a people – and who we want to be."

He concluded his statement by saying being American isn't about "what we look like, or where our names come from, or the way we pray," but instead, the belief that "all of us are created equal" and "deserve the chance to make of our lives what we will."

"That’s how America has traveled this far. That’s how, if we keep at it, we will ultimately reach that more perfect union."

LINK: The Trump Administration Is "Rescinding" DACA

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Why Does Trump Always Shoot The Hostages?

Trump poses with DREAMer activists in 2013

Courtesy Estuardo Rodriguez

President Trump, cornered, weakened, and apparently unable to get his hands on the usual levers of presidential powers, has adopted pretty much the worst possible strategy for someone trying to wield the power of the most powerful job in the world: He’s shooting the hostages.

Trump can’t seem to get the hard stuff associated with the presidency done. He hasn’t been able to mount a legislative agenda or give federal employees (besides ICE agents and the occasional EPA regulator) the foggiest idea of what he wants them to do. Congress is beyond his control and doesn’t fear him: They slapped him in the face on Russia, and when his allies “burned the ships” to pass a health care bill, his confused conquistadors didn’t make it out.

His remaining political leverage has come largely from the policies left to him as hostages by President Barack Obama: the Paris Climate accord; the Iran nuclear deal; the Trans-Pacific Partnership; and, most of all, DACA and the nearly 800,000 sympathetic young Americans it allows to live normal, and sometimes extraordinary, lives.

Trump's decision to simply kill those Obama-era acts, rather than to even attempt to use them as political leverage, helps explain the surprising weakness of his presidency. It's far from the only way he's frittered away his power. But if you are playing a weak political hand, hostages can be a source of enormous power. In the extreme case, it’s why we’re worried about Kim Jong Un. When you threaten to destroy something your political opponents desperately want to preserve, even your enemies will do a deal.

Trump’s former aide Steve Bannon saw this, and as Adrian Carrasquillo and Tarini Parti reported back in March, Bannon — a hard-line nationalist with no particular sympathy for the DREAMers — sought to use them as a bargaining chip. Bannon was telling associates until his firing last month that Trump could have signed off on legal status for DREAMers in exchange for an immigration bill that would have achieved the nationalists’ big policy goals: a smaller and better-educated annual intake of legal immigrants.

This would never have been easy. Grand immigration bargains eluded the last two presidents. But there’s really no sign Trump tried to make that deal, or that he would have known how.

The Administration’s allies, who have sued to force a choice on whether or not to defend DACA, ultimately took this choice away from Trump. They have left him with the fairly ludicrous option of suggesting that he, Donald Trump, is simply too wedded to Constitutional tradition to allow an executive order to reach into Congress’s role of setting immigration policy.

Now, if Trump kills DACA to please his base he’ll be getting the worst of both political worlds. He’ll inflict real pain on hundreds of thousands of people to reassure his 30-some percent that he’s with them. And politically speaking, he’ll have given up a bargaining chip for nothing, and spent away a bit more of his political capital. That's not strategy, it's a panicked move in a corner.

The power politics of this move would be hard to fathom. DACA recipients, their allies, and Americans who see their sympathetic stories across media will blame Trump for their suffering. (Trump will blame Congress.) If Congress manages to restore their status, it will be a deal made on Capitol Hill, with the president a sulking bystander. Power in Washington accumulates when you’re relevant; it slips away when you’re on the sideline.

But that move would be in line with the general trajectory of his presidency, which is aimed at finding the exact minimum of power an American president can exert. (Still a lot!)

Hostage-takers keep hostages alive in order to protect themselves, to get what they want out of a situation that has clearly gone rather wrong. They sometimes shoot them for the same reason Trump appears to be thinking about ending DACA: attention. Again and again, he’s faced choices between attention and power, between the reality show narrative and the complex realities of governance. He’s chosen attention every time, and there’s little reason to think that’s about to change.

LINK: How DACA Became An Orphan In Trump's White House

LINK: Trump Reportedly Could End DACA On Tuesday But There Are Still Unanswered Questions

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Republican Party Autopsy Author Goes Off On GOP As Trump’s DACA Decision Nears

President Donald Trump

Pool / Getty Images

As President Donald Trump nears a decision on what to do with undocumented immigrants who came to the US as children, Republicans will again face immigration policy issues with the immigration status of thousands with next year's mid-term elections in the mix.

Trump on Tuesday is expected to reveal what he will do with the Deferred Action for Childhood Arrivals program, or DACA, an Obama-era initiative that protects those immigrants from deportation. Politico, citing two unidentified sources, reported late Sunday that the White House is expected to end DACA but leave a window for the GOP-controlled Congress to take up the issue. (BuzzFeed News has not confirmed that, though.)

Just four years ago, building stronger relationships with Hispanic voters was among the key recommendations from the Republican National Committee’s Growth and Opportunity Project — better known as the “autopsy” following the party’s loss in the 2012 presidential election.

“If Hispanic Americans hear that the GOP doesn’t want them in the United States, they won’t pay attention to our next sentence,” the autopsy concluded. “It doesn’t matter what we say about education, jobs or the economy; if Hispanics think that we do not want them here, they will close their ears to our policies. In essence, Hispanic voters tell us our Party’s position on immigration has become a litmus test, measuring whether we are meeting them with a welcome mat or a closed door.”

Trump basically rejected the autopsy in total, campaigning on a tough anti-immigration platform that included a pledge to complete a border wall between the US and Mexico and saying, in his announcement speech, that the country was sending "rapists" to the United States.

BuzzFeed News reached out to all five autopsy co-authors Friday with three questions:

What concerns, if any, you have for the future of the party should the president end DACA?

Do you believe doing so would run counter to your recommendations?

Do you have any other concerns about the president’s leadership with regard to recommendations from the Growth and Opportunity Project?

By Sunday evening, only one of the co-authors had responded: Sally Bradshaw, who was a top adviser to former Florida Gov. Jeb Bush and his unsuccessful campaign for last year’s Republican presidential nomination — and who has spent the time since that period offering increasingly and deeply critical assessments of Trump.

Bradshaw started with a reminder via email that she left the GOP last summer, after Trump’s nomination was secure. She wrote that she now has no party affiliation.

“Donald Trump is anti-woman, anti-Hispanic, anti-black, anti-anything that would bring the country together,” she responded when pressed further. “The only thing he is for is himself. Those in Republican leadership who have enabled his behavior by standing silent or making excuses for him deserve the reckoning that will eventually come for the GOP. It makes me terrifically sad to be honest — sad for the party of ideas that I supported for over 30 years — even more sad for the country and the fact that we can no longer have a credible and important debate about issues that will lead to problem solving. I am a conservative. But I can’t and won’t be a Republican as long as Donald Trump is the leader of the Republican Party.”

Autopsy co-authors who did not respond: Henry Barbour, an RNC committeeman from Mississippi; former White House communications director Ari Fleischer; Zori Fonalledas, an RNC committeewoman from Puerto Rico; and Glenn McCall, an RNC committeeman from South Carolina.

Several prominent Republicans have expressed a desire to negotiate on DACA, including House Speaker Paul Ryan.

A RNC spokesperson declined to comment.

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Inside The Tense, Unusual HBCU-White House Relationship

Trump and Manigault-Newman last year.

Carlo Allegri / Reuters

Last year, Omarosa Manigault-Newman wanted Howard University — the historically black school known as “The Mecca” — to welcome Donald J. Trump.

The prospect of Trump visiting Howard turned into a persistent rumor on campus last year, and the source of quiet activity. Howard’s student newspaper strongly opposed the idea. The RNC donated $2,000 to start a College Republican chapter at the school — but students couldn’t gather enough signatures. One source briefed on talks told BuzzFeed News that someone had proposed a town hall event in which Trump would answer questions, maybe with TV personality A.J. Calloway.

By September, though, time was running out: As a last ditch effort, Manigault-Newman invited a handful of Howard students to Trump International, the D.C. hotel where the candidate planned to speak that day, according to a senior campaign staffer at the time and others familiar with the event.

She introduced the students to a series of Trump-world figures like Katrina Pierson — and Steve Bannon, who looked “super stoked,” one person familiar with the meeting said, as Manigault-Newman explained that she was trying to bring Trump to Howard’s campus. The students also got the chance to shake the hand of Donald Trump himself.

This all happened on the day Trump said, without apologizing, after years of his birther crusade, that President Obama was born in the United States.

The plan for a Howard visit never got off the ground.

The ill-fated efforts to bring Trump to the school, though, were just the beginning in the the complicated — and increasingly tense — relationship between this White House and the country’s historically black colleges and universities. The most pressing issue: a conference scheduled for September, just weeks after Trump seemed to defend a group of white supremacists who marched in Charlottesville by saying they had “very fine people” in their ranks.

After Trump’s response to Charlottesville, two prominent groups — the Thurgood Marshall College Fund and the United Negro College Fund — have joined a black Democratic lawmaker in calling on the White House to postpone the annual conference put on every year by the White House Initiative on HBCUs.

The White House has refused to postpone the event. The conference is just one part of the traditional infrastructure between a White House and the schools. In recent days Manigault-Newman has “pushed hard” to name members to the president’s board of advisers on HBCUs, according to a person familiar with the planning.

Manigault-Newman in particular wants to serve as an organized, front-facing liaison between Trump and HBCU leaders. Historically black colleges and universities face a much more delicate and difficult balance: The schools depend on federal funding, while serving students and alumni who largely can’t stand the president. And that tension keeps intensifying.

School presidents reached for this story referred BuzzFeed News to a statement by Dr. Michael Lomax, president and CEO of the United Negro College Fund. “At a critical time in our nation, and in the spirit of unity among our HBCUs, we believe this postponement would allow us to work together to develop a common agenda that will serve the best interests of our HBCUs, and especially our students.”

Based on a half-dozen interviews with HBCU administrators and their close associates, HBCU presidents are trying to strike a balance that sacrifices neither the needs of their institutions nor the concerns of students, faculty, board members, and alumni — many of whom believe the president has compromised his moral authority on race. Complicating this calculation, one stakeholder said, is an increasing number of students have come to these institutions galvanized by protest movements like Black Lives Matter, radicalized to the point of bewilderment their leaders would choose to associate, in any way, with Donald Trump.

“HBCU presidents are in a really delicate position,” said Jarvis Stewart, a political strategist who has helped college presidents navigate Washington. “While many of them are in great need of financial and regulatory support from Washington, they are faced with the question of whether or not the president’s commitment to racial and social justice is aligned with the purpose and mission of their institutions.”

Stewart said he would advise HBCU presidents to be united and secondly, be clear about what their measurable outcomes are. “No more photo ops, no more delayed promises,” he said. “HBCU presidents must demand meaningful legislative and regulatory action now to help sustain their universities otherwise their visit to Washington for the conference next month isn’t worth the trip."

In a lengthy interview with BuzzFeed News, Manigault-Newman said HBCU presidents concerned about what to expect from the conference could refer to language in the executive order Trump signed on Feb. 28: convening a meeting to promote “excellence, innovation and sustainability at historically black colleges and universities.”

Calling the chair of the Congressional Black Caucus out by name, she said requests to delay or cancel the event “are continuations of the ‘resist’ narrative that Cedric Richmond and the Congressional Black Caucus has advanced toward this administration, including their decision not to meet with the president and the administration for the next four years.”

Manigault-Newman, who declined to name the aide hired to run the White House Initiative on HBCUs from the White House, says officials want to make sure each institution “has a voice at the table” and are not left out of important decision making. “We've extended an invitation to all 106 presidents of HBCUs and members or chairs of their boards,” she said. “We expect that each institution will be represented.”

Manigault-Newman defended Trump’s support for HBCUs, citing his proposed education budget, which slashed nearly $10 billion in funds for the Education Department —or 13.5% — while funding for HBCUs was untouched.

“The previous administration was hostile toward the HBCU community,” said Manigault-Newman, citing cuts to year-round Pell grants and changes in the credit requirements for Parent PLUS loans that resulted in a decline of enrollment at HBCUs. “We’re still feeling the impact of those decisions on the HBCU community today.”

She continued, “Show us the photo of President Obama with all of the HBCU presidents. It does not exist. He never even tried in eight years to meet with every HBCU president at once.”

Meanwhile, at schools like Howard, students have expressed frustration that the school’s president, Wayne A.I. Frederick, met with Education Secretary Betsy DeVos.

“Trump has continuously shown where he stands on the issue of white supremacy, the most recent example being his egregious response to Charlottesville,” said Jason Ajiake, a Howard student and organizer with HUResist, a student-led group that has fiercely opposed Frederick and more recently taken umbrage at the school’s invitation of James Comey to speak at its convocation ceremony and be a guest lecturer. “There's really no reason to be there, and I think that if Frederick continues to work with the Trump administration in any capacity students will start to question both his principles and intentions, if they haven't already.”

The current situation follows a series of mishaps. Trump questioned the constitutionality of the Historically Black College and University Capital Financing Program. There was a hastily planned photo-op with Trump in the Oval Office (that “threw the day off” according to Dillard University president Walter M. Kimbrough, who declined an interview for this story). During that photo-op, Trump referred to the school presidents as “you people” in the Oval Office. (The White House noted that the February photo-op was optional and just one part of a two-day fly-in conducted in tandem with the UNCF and the Thurgood Marshall College Fund.)

Some school presidents attended on the belief that Trump was going to add funding for HBCUs in his budget. “What comes to mind is the saying, ‘Fool me one time, shame on you. Fool me again, shame on me,’” according to a source who has spoken with board members and administrators about Trump. A president of a large HBCU in the deep South confided to a Democratic source: “What do I have to lose if I don't go?”

“[The presidents] really do want to delay primarily because the push back on campus will be great, particularly after Charlottesville,” said Dr. Andre Perry, a Brookings Institute fellow who specializes in education policy. “They would like to delay the meeting until the smoke clears.” But Perry said several are conflicted, also, because attending these types of meeting are “what they’re supposed to do.”

Perry said the presidents don’t want to touch the White House meeting which is “in peril because of how toxic the environment has become and because Trump has not delivered from that first meeting.”

“So to go back in without any real indication that Trump can deliver is foolish,” he continued. “You want to be at the table, but [it’s not] what the clear agenda is,” he offered, assuming the voice of a leader of a school with angry students that could be struggling financially and is having difficult, institution-wide conversations about race stoked by Trump: “Is it just to meet?”

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Ninth Circuit Has Tough Questions On Trump Administration's Travel Ban Rules

Kevin Lamarque / Reuters

Federal appeals judges seemed skeptical of Trump administration attempts to broadly interpret who is covered by President Trump’s travel ban on Monday during oral arguments.

Monday’s arguments at the US Court of Appeals for the Ninth Circuit in Seattle focused on the current partial application of the travel and refugee bans since late June — a move the US Supreme Court allowed in a June 26 order.

Ultimately, the Supreme Court will hear arguments this fall over the travel and refugee bans, but the arguments at the Ninth Circuit are important because they are one of the last times before then that the government will get to make its case about how it believes Trump’s ban should be seen by courts. Moreover, a ruling from the Ninth Circuit could shift the way the justices approach the Supreme Court case, scheduled for arguments on Oct. 10.

Moments after the Justice Department lawyer defending the government’s argument began on Monday, Judge Ronald Gould cut in with a question.

“How can the government say” a grandparent or aunt or uncle isn’t a close family member, Gould asked. “In what universe does that come from?”

In the June order, the Supreme Court barred enforcement of the 90-day travel ban from six Muslim-majority countries or the 120-day halt to the US refugee program against those with a “credible claim of a bona fide relationship” to a US person or entity.

Since then, the fight has, unsurprisingly, focused on what constitutes a “credible claim of a bona fide relationship.”

The administration announced its policy for interpreting that language hours before it was due to to go into effect. The arguments in the seventh-floor courtroom on Monday dealt with two main points of contention around that language.

First, the government excluded “siblings-in-law, cousins, nieces, nephews, aunts, uncles, grandparents, and grandchildren” from the definition of those “close familial relationships” that would be exempted from the ban. The government also excluded refugees who have an “assurance” from a resettlement agency, rather than a scheduled relocation plan.

US District Judge Derrick Watson, however, barred the government from enforcing the ban against either of those groups.

The Justice Department subsequently asked the US Supreme Court to clarify its June order or take an appeal of Watson’s order and reverse that injunction. The court denied those requests, but it did put the resettlement agency part of the injunction on hold pending the outcome of the Justice Department’s appeal to the Ninth Circuit — a move that allows the federal government to keep out refugees for now who only have assurances from resettlement agencies and no other US connections.

Monday’s arguments, then, were over those two provisions of the district court’s modified injunction.

The three judges hearing the case previously upheld most of the original district court injunction that put the bans on hold — a sign of their dissatisfaction with the executive order’s legality. A difference on Monday: The US Supreme Court partially reversed the Ninth Circuit’s ruling, in effect, with its June order earlier this summer.

Hashim Mooppan, the Justice Department lawyer defending the government’s interpretation of that Supreme Court order, faced intense questioning from the three-judge panel hearing the case — particularly regarding the government’s exclusion of many people commonly thought of as close family members from the definition of “close familial relationship.”

“Could you explain to me what’s significantly different between a grandparent and a mother-in-law?” Judge Richard Paez asked via video conferencing. The question was a reference the Supreme Court’s order specifically stated that the mother-in-law of the plaintiff who joined in Hawaii’s lawsuit “clearly” has a close familial relationship with him. “One is in and one is out.”

Mooppan argued that the marriage “form[s] a spousal unit,” such that “[y]our spouse’s family becomes one family.” As such, he argued, there’s effectively no difference — in terms of deciding how close of a family member a person is — between a parent and a parent-in-law.

When pressed on the point that grandparents and grandchildren often have as big of a role in a family as in-laws, Mooppan pressed back. “Often extended family plays an important role,” but that doesn’t make it close family, he said.

The judges did not sound convinced. As Paez put it during Mooppan’s rebuttal arguments, if the Supreme Court wanted to limit those exempted from the ban to “immediate” family members, they would have done so.

On the other side was the lawyer for Hawaii, which sued the federal government over the executive order. Colleen Roh Sinzdak, the Hogan Lovells lawyer representing Hawaii, faced her toughest questions over whether refugee resettlement “assurances” should be seen as sufficient.

Mooppan had argued several points against exempting those with such assurances from the refugee ban. He argued, first, that the Supreme Court’s stay of the resettlement part of Watson’s order virtually resolved the question — because the standard for granting a stay means the Supreme Court considered whether the Justice Department is likely to succeed on its argument.

He argued further to allow refugees to come in with only “assurances” from a resettlement agency would render the Supreme Court’s June order “meaningless” — because it would allow almost all of those refugees who would have been able to come to the US during the time the 120-day ban is in effect to continue to come into the US in spite of the ban.

Sinzdak did not respond to that argument on Monday, but Hawaii’s lawyers had been dismissive of that argument in its court filing. “At bottom,” they wrote, “the Government’s complaint is that the District Court’s order will undermine its efforts to admit as few refugees as possible, but that policy argument is no basis for distorting the Supreme Court’s opinion to say what it does not.”

The Justice Department’s underlying argument, though, is that the resettlement agencies have a relationship with the federal government and not with the would-be refugees — which it argues means that the would-be refugees don’t actually have a relationship with a US entity.

Sinzdak countered that the Justice Department was arguing its case based on “new standards, not from the Supreme Court, but of the government’s own invention.”

Looking to the Supreme Court’s June order, she noted the court’s ruling exempted those whose relationships with US entities are “formal, documented and formed in the ordinary course.” This, she argued, meant they are “relationships that are formed in good faith, not to evade the executive order.” The resettlement agency “assurances” fit that definition, so they should be exempted from the ban.

The judges picked up on one point of the “invented” standards argument, getting into an extended back-and-forth with Mooppan over the question of whether it’s relevant whether the connection be “direct” or not.

“Where does it say a ‘direct’ relationship” is required in the Supreme Court’s order? Paez asked.

When Mooppan began to stumble a bit through an answer, Hawkins jumped in.

“So, nowhere,” the judge snapped from the bench.

Mooppan, though, attempted to press his point, arguing that it’s not just that it’s an indirect relationship between the resettlement agencies and the would-be refugees: “It’s nonexistent.”

Paez and Hawkins weren’t buying it, continuing to question Mooppan’s arguments on the point until he sat down to allow Sinzdak to argue.

During Sinzdak’s arguments, however, Judge Michael Daly Hawkins focused on a different issue altogether. Perhaps looking for a reason to explain the Supreme Court’s different treatment of the family portion and resettlement agency portion of Watson’s injunction modification, Hawkins asked about the distinction between the discretion involved in immigration law versus the refugee program.

Calling it “a basic difference,” he highlighted statutory rights relating to family-based immigration — which would require congressional action to change — and the largely “permissive” refugee program. Hawkins asked Sinzdak whether that distinction was important.

Although she initially pressed back somewhat on whether the president could totally halt the refugee program without congressional action, Sinzdak ultimately pointed to the Supreme Court’s June order to counter any view that the two sections should be seen differently. “The Supreme Court did not dwell on differences between immigrant and refugees,” she said. “They looked at who will experience concrete hardship.”

The court gave no signal as to its timeline for issuing a decision on the issues.

The arguments Monday were just the latest in the seven months of litigation since Trump first signed a travel ban executive order on Jan. 27.

After the Ninth Circuit declined to put a Seattle federal district court judge’s injunction against that first executive order on hold, the administration narrowed the ban slightly, with Trump signing a revised version — that he later called a “watered-down” version — on March 6.

Before that version could go into effect, however, Watson put the main parts of the ban on hold. A federal judge in Maryland also issued an injunction, albeit a narrower one, of that second version of the ban. The administration appealed both injunctions, and both courts upheld the injunctions in large part — banning the administration from enforcing either the travel or refugee bans or the 50,000-refugee cap.

Those rulings led to the Supreme Court appeal, which led to the partial stays of the district court injunctions. The Supreme Court also agreed to hear the case itself — arguments over whether the travel or refugee bans violate laws or the Constitution. Those arguments are scheduled for October.

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