This article appeared in The Intercept on February 6, 2017.
DONALD TRUMP’S EXECUTIVE ORDER banning travel to the United States by the citizens of seven Muslim-majority countries and by refugees worldwide has been broadly rejected by the judiciary, with over a dozen federal court orders restricting or staying the travel ban.
Now, more than 150 former federal prosecutors have expressed their disapproval of Trump’s overreach as well. On Monday, former Assistant United States Attorney Ellyn Marcus Lindsay provided The Intercept with a letter signed by herself and 53 other former AUSAs in California, which referred to the executive order as “a thinly veiled attempt to exclude Muslims from certain countries based on their religion.”
Lindsay worked in the criminal division of the U.S. attorney’s office in Los Angeles for 28 years.
Two similarly worded letters have been signed by former AUSAs in New York and Florida. The New York letter has 65 signatories and the Florida letter has 36. The three letters hold no legal force, but they reflect a strong current of mainstream opinion within the legal profession that is in vocal opposition to Trump’s abortive travel ban.
Also on Monday, the American Bar Association adopted a resolution urging the president to withdraw the executive order. In a speech prior to the vote, ABA President Linda Klein warned that parts of the executive order “jeopardize fundamental principles of justice, due process, and the rule of law.”
“We must avoid sweeping bans based on religion or national origin,” Klein said in her remarks and called for a judiciary “independent from the president of the United States.” She applauded the ABA for launching a website to coordinate legal defense for immigrants affected by the travel ban. Klein also responded directly to Trump’s tweet attacking Judge James Robart, whose temporary restraining order suspended the ban. “There are no ‘so-called judges’ in America,” she said. “There are simply judges — fair and impartial.”
Last week, the San Francisco Bar Association also lambasted the travel ban, calling it “cruel and intolerable, and likely unlawful.”
The AUSA letters argue that Trump’s executive order permits the president to give an unconstitutional “religious preference” to Christians over Muslims in admissions into the country.
Patricia Pileggi, a former federal prosecutor in New York, said, “We entered into agreements with other countries to allow people into the U.S. Without any notification whatsoever, those agreements were revoked. The order initially prevented people from returning to schools, to jobs, prevented scientists from returning to the U.S. to do very valuable research.”
Attorneys general for 15 states and the District of Columbia filed an amicus brief on Monday supporting the challenge to Trump’s Muslim ban by Minnesota and Washington state. Jeff Modisett, a former AUSA who signed the California letter, was the Indiana attorney general from 1996 to 2000. If he were still in that position, he told The Intercept, he would have joined the brief as well.
The Trump administration also filed a brief with the court, arguing that it was within its authority to issue the ban. The 9th Circuit Court of Appeals will hear oral arguments on the suit on Tuesday.
“Putting aside the inhumanity, bigotry, and ignorance underlying this order,” wrote Lindsay in an email to The Intercept, “you would have to be blind to see the order as anything but absurd. To effect such a broad and sweeping change of the rules (which, to date, have not led to one terrorist attack), without proper vetting or notice to affected persons and agencies shows a recklessness and lack of care that is simply terrifying.”