Lawyers for two states challenging President Trump’s sweeping limits on immigration could soon get the chance to demand information from key government officials on how they put together that executive order, and what they intended it to do.
That opportunity could result from a new order issued Monday afternoon by a federal trial judge in Seattle — the same judge who had temporarily blocked enforcement anywhere in the nation of the January 27 presidential order targeting foreign nationals seeking entry to the U.S. from Mideast nations.
U.S. District Judge James L. Robart cleared the way for a formal trial in his court on whether the Trump order is unconstitutional and whether it violates federal discrimination law. Those questions were not decided in a final way when the judge stopped enforcement of the executive order.
A key part of a full trial is what lawyers call the “discovery” process. That is the way each side in a lawsuit makes demands for information from the other side to fill out the facts on which legal judgments ultimately will be made.
Depending upon how free-ranging the judge allows that process to be, it can be deeply intrusive.
In the courthouse fight over the immigration order, for example, lawyers for the suing states — Washington and Minnesota — are expected to try to gather evidence that the executive order was intended to discriminate against Muslims on the basis of religion and was designed to favor Christians and was framed to deny fair procedures on who can be admitted to the U.S. They are likely to demand testimony under oath from officials who were involved in drafting the executive order. The legal right to demand such testimony from President Trump himself may be doubtful.
Judge Robart agreed to let the case go forward to a trial after rejecting a plea by Trump Administration lawyers to put everything on hold in his court until the U.S. Court of Appeals for the Ninth Circuit decides whether it will reconsider a decision by a three-judge Circuit Court panel last week. The panel had refused a government plea to allow it to begin enforcing the immigration restrictions.
Reconsideration of that order, if granted, would be before an eleven-judge (en banc) Circuit Court. That court is expected to hold a vote on rehearing soon — perhaps later this week. Legal briefs for and against rehearing are due on Thursday.
Even if rehearing were to be granted, it is not clear whether that would legally interrupt the ongoing proceedings in Judge Robart’s District Court. Lawyers for the two states have argued that the two proceedings are separate, so the trial can go forward.
Although some government officials have said that they might take the dispute on to the Supreme Court, that could not happen until after the Circuit Court rehearing issue is settled, one way or the other.
