The clerk of a federal appeals court that is now reviewing President Trump’s immigration order disclosed on Tuesday that an attempt, apparently from outside of the case, has been made to try to get a ruling in favor of presidential authority on the issue.
For the past several days, similar e-mail messages calling for that outcome have been sent to the judges of the U.S. Court of Appeals for the Fourth Circuit, its clerk, Patricia S. Connor, said in notifying all of the lawyers taking part in the case.
In an indication that the attempt came from someone not involved in the case, the clerk referred to the e-mails as “an unauthorized ex parte communication.” The attorneys were told that they were being notified on orders of the court under an ethics code provision that such an attempt to influence had to be disclosed promptly to all those taking part in it.
Judges often hear, informally by letter or other means, from the public about cases before them, but most of those are simply ignored. Judges have an ethical duty to confine their review of a legal dispute to the papers formally filed before them, under quite strict rules on what can be said and at what length.
It is unusual for a court to take the step that the Fourth Circuit Court did on Tuesday, but the fact that it did so appeared to reflect concern about the seriousness of a potential breach of the norms for a court about a specific pending case.
In recounting the e-mail contacts, the clerk said, they contained similar messages, with specific discussions of the issues at stake in the case of International Refugee Assistance Project v. Trump.
The text that the clerk quoted directly was quite sophisticated, and attacked on several key points the ruling by a Maryland federal judge blocking the president from imposing a 90-day suspension on entry into the U.S. of foreign nationals from six Mideast nations. It had specific references to federal laws at issue, data about past presidential actions controlling immigration, and comments that showed a keen understanding of legal points at play.
It also made summary judgments about the Maryland order – for example, contending that it “perpetuates a dangerous myth that President Trump’s travel ban is ‘a Muslim ban.’ “
The message, citing the case by its specific title and docket number, concludes with this: “Please make our national security a priority and our public safety a priority over political correctness. Please reverse the district court’s order…”
The clerk’s notification did not say how many such e-mails had been received, and said nothing about whether the court was going to take any action or even seek an investigation of the source or sources of the e-mails. The court has the option of referring the matter to the U.S. Marshals Service, which provides protection for court operations. A referral to the Justice Department appears to be another option, to see if there has been an attempt to obstruct justice.