On Monday, a federal appeals court in Seattle, Washington, heard arguments over Trump’s second travel ban, which sought to prohibit all refugees and citizens of six majority-Muslim nations from entering the United States. This is the second such court review this month. This marks Trump’s second attempt to roll out a nationwide Muslim ban. We speak to the man who successfully blocked Trump’s first attempt — and ignited a legal firestorm of resistance: Washington Attorney General Bob Ferguson.
This is a rush transcript. Copy may not be in its final form.
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AMY GOODMAN: “Rescue Me” by Fontella Bass, released on Chess Records, and our next guest is quite the chess player. This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.
On Monday, a federal appeals court in Seattle, Washington, heard arguments over Trump’s second travel ban, which sought to prohibit all refugees and citizens of six majority-Muslim nations from entering the United States. This is the second such court review this month. The panel of three judges appeared to be divided over the ban. Some questioned President Trump’s attorneys whether the ban discriminates against Muslims. Others asked attorneys challenging the ban to justify why the court should interfere with Trump’s presidential powers to determine national security policy. At Monday’s hearing, Senior Judge Michael Hawkins of the 9th Circuit questioned acting Solicitor General Jeffrey Wall.
JUDGE MICHAEL HAWKINS: Has the president ever disavowed his campaign statements? Has he ever stood up and said, “I said before I wanted to ban all members of the Islamic faith from entering the United States of America. I was wrong. I’ve consulted with lawyers. I’m now addressing it simply to security needs”? Has he ever said anything approaching that?
JEFFREY WALL: Yes, Judge Hawkins, he has said several things approaching that, and I think it’s detailed in various amicus briefs. The best one is probably the Southeastern Legal Foundation brief, and part three walks through the comments and shows that, over time, the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them. And over time, he and his advisers clarified that what he was focused on were groups like ISIS and al-Qaeda. And really, the one post-inauguration statement they’ve got, the “We all know what that means,” I’d encourage the court to go back and look at the ceremony in which the president signed that executive order.
AMY GOODMAN: Outside the federal courthouse in Seattle, dozens of immigrants’ rights advocates rallied and waved signs saying, “No Ban, No Wall.” The hearing came after a federal judge in Hawaii issued a nationwide halt to the order in March. A judge in Maryland also temporarily blocked the travel ban. The case is likely to go up to the U.S. Supreme Court. This is Trump’s second attempt to roll out a nationwide Muslim ban.
Well, we’re joined for the remainder of the hour by the man who successfully blocked Trump’s first attempt — and ignited a legal firestorm of resistance: Washington state Attorney General Bob Ferguson. On January 28th, just a day after Trump issued his initial Muslim travel ban, Ferguson touched down at Seattle’s Sea-Tac International Airport, where thousands of protesters were gathered in support of immigrants and refugees impacted by the ban. Ferguson and his team immediately jumped into action, filing lawsuits arguing Trump’s order violated the Constitution. Less than two weeks later, a three-judge panel of the 9th Circuit affirmed an order halting it. You could say it was checkmate for Trump’s first travel ban by a former state chess champ. That’s right. Ferguson is not only a state attorney general, but also an internationally rated chess master. For more, we go to Seattle, Washington, where we are joined by Washington’s attorney general, Bob Ferguson, who recently made Time’s list of 100 Most Influential People for successfully taking on Trump’s travel ban. Ferguson is also one of the 20 state attorneys general calling for a special counsel investigation into Russia’s role in last year’s presidential election.
Attorney General Bob Ferguson, welcome to Democracy Now! Talk about the significance of the hearing that took place yesterday and why you jumped so quickly into action to challenge the travel ban that President Trump wanted to impose.
ATTORNEY GENERAL BOB FERGUSON: You bet. Hey, first, thanks so much for having me on. I really appreciate it.
And yesterday’s hearing was really an extension that goes back to our challenge to the original travel ban. It touches on core constitutional issues, such as the limits of presidential power.
And to answer your question about why we moved so quickly — you’re right, the president signed the original travel ban, as you know, on a Friday evening. My team, we worked all of that weekend. And by Monday afternoon, we had filed our complaint in federal court and, by that following Friday, had it struck down. So, we worked so hard because we knew that every hour mattered. Folks were being turned away at airports all around the country. These are folks with travel visas, green cards, students at our colleges and universities. So the team really felt strongly that we had to move as quickly as we could, because the executive order, frankly, was so overbroad and unconstitutional.
AMY GOODMAN: Is it true that you landed into the mass protest that was taking place, well, all over the country at airports, and, for you, at Sea-Tac, at the Seattle International Airport?
ATTORNEY GENERAL BOB FERGUSON: Well, it’s true I landed at Sea-Tac Airport midday on Saturday. That was the day where protests were occurring at airports. When I landed, the protests had not quite yet started, but I had phone calls, when I landed, from my team, saying, “Hey, there’s going to be a big press conference there at Sea-Tac Airport in just a couple hours.” The governor, of course, was going to be there, and others, and I was invited to stay for that press conference. I wanted to be there, of course, to show my support, but I really felt my time was best utilized by, frankly, getting back home, talking to my legal team, because the team was already hard at work at that point. We had attorneys who were canceling ski vacations, going back to the office to work around the clock that weekend, because we really knew we wanted to try and challenge this, frankly, unlawful executive order as quickly as we possibly could.
AMY GOODMAN: So what is your response to the hearing yesterday in the 9th Circuit? How do you think it went?
ATTORNEY GENERAL BOB FERGUSON: Well, from my standpoint, the hearing has been pretty consistent with other hearings we’ve seen around the country and in hearings we saw with our original travel ban litigation. In other words, Donald Trump’s statements from his campaign, in which he called for a complete and total shutdown of Muslims coming into the United States, statements by his key advisers, like Rudy Giuliani, saying that the president was asking him to put together a commission to create a Muslim ban just to try and make it legal, those statements are coming back to haunt the administration, because they go to the intent behind both the original travel ban and the revised one. What the plaintiffs, what the states have to show is that a motivating factor behind the travel ban was an animus towards Muslims. And those statements are, frankly, fair game in establishing that intent.
AMY GOODMAN: I want to go back to Monday’s hearing. This is attorney Neal Katyal, who represents the state of Hawaii, speaking at the 9th Circuit hearing.
NEAL KATYAL: We wouldn’t be standing here if it was just campaign statements on its own. But as the district court found, the president rekindled those statements through his actions as president in two different respects. First, when he issued the first executive order, he read the title of the executive order, looked up at the camera and said, “We all know what that means.” That’s at SCR 148. And that is — you know, if it was clear from the title what it meant, he wouldn’t have had to say it. It’s a reference to something else. And, indeed, when he issued both executive orders, he left on his website that very statement about the complete and total shutdown of Muslims, a statement that just happened to disappear moments before the 4th Circuit argument last week. So, I think the question is: What would an objective observer view these statements as? And as the district court found, it would view them as an establishment of a disfavored religion of Islam.
AMY GOODMAN: So, that’s attorney Neal Katyal. Bob Ferguson, attorney general of Washington, your response?
ATTORNEY GENERAL BOB FERGUSON: Yeah, I think he’s got it spot-on. And as I mentioned before, Rudy Giuliani, when I mentioned his quote about the president asking him, Rudy Giuliani, to create a commission to create a Muslim ban, those words came after Donald Trump was a — was president. So, these statements, it’s not a one-off from one campaign event back many months ago. There’s a pattern of comments from the president himself and his key advisers making very clear what they want to do. And frankly, every federal judge so far that has looked at this case, from the original travel ban to the revised one, whether those are federal judges appointed by Democratic presidents or Republican presidents, have all agreed that the injunction must be in place and that the travel ban cannot go forward.
AMY GOODMAN: Let’s go to the former New York City mayor, Rudolph Giuliani, close ally of President Trump, speaking on Fox News.
RUDY GIULIANI: I’ll tell you the whole history of it. So, when he first announced it, he said, “Muslim ban.” He called me up. He said, “Put a commission together. Show me the right way to do it legally.” I put a commission together with Judge Mukasey, with Congressman McCaul, Pete King, whole group of other very expert lawyers on this. And what we did was, we focused on, instead of religion, danger! The areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal. Perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.
AMY GOODMAN: So, it’s not based on religion, says Rudolph Giuliani. It’s based on danger. Attorney General Bob Ferguson?
ATTORNEY GENERAL BOB FERGUSON: Yeah, I mean, contrary to his own words, right? He said the president literally called him up and said, “Create a Muslim ban. Just make it legal.” What we would submit is that that can’t be done. You can’t say you’re going to have a Muslim ban and try and make that legal. That violates our Constitution. And multiple federal judges have came to the same conclusion.
Also, on the sort of latter point of his comments there, it’s worth pointing out that Homeland Security issued a report. Early on, we had our battle over the first executive order. Homeland Security issued a report saying that nation of origin is a poor way to determine who comes into the country, if what you’re concerned about, frankly, is national security. We had the former CIA director of George W. Bush support our litigation against the travel ban, saying that the travel ban was bad for national security. Frankly, there’s been more evidence in the record of these cases that the travel ban is a bad idea for national security rather than a good one.
AMY GOODMAN: Attorney General Bob Ferguson, President Trump called the judge who stayed the ban in your state, Washington, a “so-called judge.” And then Jeff Sessions, the attorney general of the United States, just said two weeks ago on a right-wing radio talk show, talking about the Hawaiian judge, the judge — the federal judge in Hawaii who stayed the second travel ban, “How is it possible that a man on an island in the Pacific can stop the president of the United States?” Your comments?
ATTORNEY GENERAL BOB FERGUSON: Well, it’s frankly hard to know where to start. Both comments are deeply offensive, I think, to the judiciary and the rule of law. I guess what I would point out for your audience is that I didn’t hear then-Senator Sessions complaining when President Barack Obama issued his executive order on immigration reform, and the Texas attorney general, a Republican, filed a lawsuit challenging that executive order, and a federal judge in Texas struck it down nationwide. I didn’t hear folks complaining then, when a single federal judge could strike down an entire executive order by a president on immigration issues. They’re complaining now, frankly, because they lost. But they only have themselves to blame. The executive order that was rolled out was sloppy. They were not communicating with their key agencies. It was blatantly unconstitutional. It gave folks no warning at all. So I’m not surprised that they’re losing. But it is unfortunate that they can’t simply go to work on trying to find a constitutional way to keep our nation safe, rather than criticizing federal judges who are deeply respected by lawyers across the country.
AMY GOODMAN: You know, we were just in Seattle, and I was wondering if you could talk about the significance of Washington state leading the way on this challenge to the Muslim ban — I mean, so-called by Donald Trump, when he was running for president — and also the history of Washington state when it comes to the Japanese internment camps in World War II.
ATTORNEY GENERAL BOB FERGUSON: Well, you raise a really important part of our history and a really, obviously, sad and disturbing part of our history, which relates to the internment of Japanese Americans during World War II. That’s a history that we live with out here on the West Coast, and in Washington state specifically. And as a child growing up in Washington state, that’s a history that I learned about, that I heard about from my parents, and is obviously something we’ve learned from and do not want to repeat.
I might also add that one of our Republican governors, Dan Evans, who was a very prominent governor of ours in the ’60s and ’70s, back after the Vietnam War he was really the first and most prominent governor in the entire country to welcome Vietnamese individuals fleeing Vietnam after the war and needing to settle in the United States. Very few governors wanted to welcome them to their communities. Dan Evans, a Republican governor, most certainly did. He was a leader in that regard. So, I think our history has both a disturbing past, that we’ve learned from, but I think that’s helped both Republicans and Democratic leaders of our state over the years to come to terms with that history and learn from it and try and improve upon it.
AMY GOODMAN: Attorney General Bob Ferguson, you’re among the state attorneys general who are calling for a special counsel into the Russia probe, the probe of whether Russia, in any way, was colluding with the Trump administration over interference in the 2016 election. Why are you calling for a special counsel?
ATTORNEY GENERAL BOB FERGUSON: Well, it’s needed. My goodness. I mean, having the president of the United States fire the FBI director, who was in the middle of an investigation regarding Russian interference related to the president’s key advisers, to take an action like that is, frankly, shocking, from a constitutional sense. And so, what needs to happen is that independent investigation needs to go on. And frankly, a special prosecutor is the path to do it.
I think one key aspect of this that we see from the president is he does these outlandish actions. It’s in an executive order on a Muslim ban or firing the FBI director. I think the key to success in taking the president on and restoring the rule of law is put him in a forum that he is, frankly, going to be on the defensive and not as comfortable, and that’s the courtroom. That’s through a special prosecutor. You can’t tweet your way out of an investigation from a special prosecutor. You can’t tweet your way out of a courtroom. What matters there is the Constitution. That’s why I feel so strongly that special independent prosecutor is so badly needed.
AMY GOODMAN: In April, President Trump ordered a review of national monuments, potentially opening up millions of acres of public lands to drilling, mining and logging. Trump said his executive order was aimed at reversing President Obama’s use of the 1906 Antiquities Act to protect federal land from development. This is what he said.
PRESIDENT DONALD TRUMP: The Antiquities Act does not give the federal government unlimited power to lock up millions of acres of land and water, and it’s time we ended this abusive practice.
AMY GOODMAN: Attorney General Bob Ferguson, earlier this month you sent a letter to the secretary of interior, Ryan Zinke, voicing your concern about the potential rollback of national monument protections ordered by President Donald Trump. Can you explain?
ATTORNEY GENERAL BOB FERGUSON: Absolutely. Donald Trump is the first president since Teddy Roosevelt to take the view that somehow he alone, the president, can roll back these protections for, frankly, some of our most beautiful places that we have in the United States. It’s our view that he’s wrong on the law and is wrong from a policy standpoint, as well. We, of course, are focused on the law. I’ve asked my legal team to go to work on it, because here in Washington state, we have a couple of those national monuments that could fall under the broad interpretation of this executive order that he’s issued. We want to stop that in its tracks. Once again, to my earlier point, I think, frankly, the way to confront and take on this president is to take him to the courtroom. Right? That is where it’s a level playing field. That’s where the rule of law prevails. And I’m confident that if they go forward with trying to roll back protections for national monuments, they will lose once again in the courts.
AMY GOODMAN: Finally, we only have 30 seconds, but your state has just legalized recreational marijuana. Can you respond to the attorney general, Jeff Sessions, wanting to crack down, intensify the war on drugs?
ATTORNEY GENERAL BOB FERGUSON: You bet. Governor Jay Inslee from Washington state and myself sent a letter to Attorney General Sessions two or three months ago explaining why we think marijuana legalization should be allowed to move forward here in Washington and asking for a meeting. We have not heard back yet.
AMY GOODMAN: Well, Washington Attorney General Bob Ferguson, I want to thank you very much for joining us, joining us from Seattle, Washington.
ATTORNEY GENERAL BOB FERGUSON: Thank you.
AMY GOODMAN: And that does it for today’s program. Tonight I’ll be speaking in San Diego at St. Paul’s Cathedral at 7:00 p.m. On Wednesday, I’ll be in Los Angeles for a benefit for KPFK, Pacifica Radio, at Immanuel Presbyterian Church 7:00 p.m., then on Thursday at noon in Los Angeles at Skylight Books and at 7:00 p.m. in Santa Barbara at La Casa de la Raza. And on Friday we’ll be in Santa Fe, New Mexico, at the James A. Little Theater at 7:00. On Saturday, we’ll be in Tempe, Arizona, at Changing Hands; in the evening, celebrating KPFT in Houston, Texas.