 on in the park on the street that was a fabulous if you ever have a chance to watch that you should so today we're doing life in the law here in the three o'clock block with our friend of many years John Edmunds Esk who's an attorney at law in the Davies building and has been there a long time in fact he and I were admitted in the same year 1968 he attended Stanford undergraduate USC law school and he has been practicing I I supposed in litigation and largely in big cases for all those years do the math hi John okay good be back great to have you here he's a regular contributor on think tank so you know this is very important that we need to know where you're coming from so you're an appellate litigator in large part you do big cases big trials and big appellate litigation talk about your background well I started with the oldest firm out here was in Robertson Castle and Anthony I spent about two and a half three years with them went on to open my own firm and actually then took up an invitation from brookard to come over to the public defender's office and I was chief deputy public defender for two years then went back into private practice along in there I got involved in some cases against the United States government now I never had to sue the president but I did sue the secretary of the Army Navy Marine Corps all and then again the secretary of the Navy and all the ships at sea along with Stan Levin there's a very interesting case with the days well they they passed a decision came down that said that any person anywhere in the United States any citizen who was ever charged with a crime where the crime could involve imprisonment you didn't have to be sentenced into prison or jail just if we could involve it had the right to a lawyer so we brought suit on behalf of all the ships at sea with all the enlisted men and naval fellows out there and there were no women then and we got an injunction from Martin Pence saying they we sued saying they could not hold what was called a captain's mask the ships at sea as you know somebody acts up they don't you don't have a courtroom you don't have a judge they have a thing called captain's mask and they hold you up and put you in the slammer that was in muting on the bounty that's remember he locked up the mess boys who are stealing the strawberries that was a captain's mask well this you know that gives us the flavor I mean John started out in some very adventurous may I say litigation we won that but of course you did and he's won a lot of cases since and the case has been at the trial level and at the appeal level they've been state level they've been federal level they've involved parties from all over the country in the world he is a primo litigator and that's why we wanted to talk to him about what happened in the state of Washington what happened with that TRO what happened with the Ninth Circuit so let's go through it first what what was the order I mean it just summarized for me the order that was the subject the the president executive order that was the subject of the case in Washington well the president issued a an executive order that had the he thought the force and effect of law and they normally do if they're constitutional banning certain visa holders and others who didn't hold visas who wanted to come in the United States and I think everybody out in the public knows there were I think six or seven countries that were anyone from those countries could not come in anyone holding a already holding a US visa who was a citizen of one of those countries but had a an already pre-approved visa where they'd been vetted couldn't come in and he left out about six or seven other countries where he felt that the threat of terrorism was not as great now all this was predicated on his belief and finding in the executive order he recited the fact that he believed the terrorism was a great threat to people coming in from those countries and of course as we all know he had previously said during the campaign that he wanted to ban on all Muslims from coming in the United States and the executive order itself split and excluded a series of Muslim countries and included others and that was one of things they went to court over we'll get to that yeah let's talk about that so Washington state of Washington it's a special state in many ways and the Attorney General of Washington filed an action in the United States District Court for Washington I guess in Seattle Seattle seeking among other things a TRO can you can you talk about the basis of that case and what they were seeking in the way of a TRO and other relief well the basis was you'll note that there were no individuals who filed that suit there was nobody holding a pre-approved visa who was from one of those countries who was going to the University of Washington who wanted to come in and but the Attorney General there filed suit on behalf of the state of Washington claiming that there were enough students who had visas who would have otherwise been allowed to come back into Washington some I think were medical students or intern doctors but who were employed by the state and he asserted the Attorney General asserted on behalf of the state that the state would lose a tremendous amount of not just revenue but the professional efforts of these people the work they did that contributed to society in Washington now the U.S. government opposed that you mentioned a temporary restraining order I'd like to take a minute and please explain what a temporary restraining order is one thing about our system of justice is that it's premised on the idea that if you go into court you and I are in a fight who knows you're in my car I need to sue you you file a lawsuit and the the usual route that any lawsuit takes is each side gets notice of it gets a lawyer or not comes into court and everything that's done is heard by a judge who hears both sides there's a big exception though and the exception is what leads you to a temporary restraining order the exception is if something's going on that is so unusual and is threatening life liberty or property and there is not time to go find a judge and hold a hearing the party who claims is going on can go in and apply for a temporary restraining order now you can't just walk down to the courthouse and fill out a form you have to go under oath file an application a graphic example of something that doesn't happen anymore but one would be if you were a an attorney and you knew that client of yours was in the in jail and was being they were trying to beat a confession out of them they literally were on them at the time and you had witnesses who'd come out and they'd seen it but it was Saturday Sunday night you couldn't do anything you could get out and file a temporary restraining order all by yourself all by yourself the theory being that what's going on is something you can't wait to go to court you can't come into court two weeks later and say well they were beating my guy up he can sue for damages but he can't stop the infliction of this irreparable harm which is what's in the law you have to you don't have to show a horrible harm you have to show a well you do irreparable harm which would be somebody cutting down a tree in your backyard the police beating on a prisoner who's confined can be any number of things but irreparable injury and you have to show a substantial likelihood of success on the merits and that's something that the night circuit opinion talks about that in this case a lot of people who talk about it just said you had to show a likelihood of success it's not a likely to substantial likelihood of success on the merits so what were they seeking on the merits I mean what is the state of what forget about the TRO from it what was the case in general seeking was seeking a judicial declaration that the president did not have the power to issue this executive order this blanket executive order that later came out that if he'd narrowed it done in a certain way it might have passed muster we're not know nobody's area but what went to court with the judge in Washington was did they get a temporary restraining order any issue to temporary restraining order the founder would be irreparable harm if he did not take action on this executive order right now right now for a series of reasons but one of them was he believed that there was a religious basis for the ban the executive order itself is something that Trump administration is trying to make a big deal out of but the order itself doesn't talk about Muslims but I think we all remember that there was a tape shown of Rudy Giuliani dur recently a during the convention or sorry after after the convention after Trump was elected president saying President Trump came to me and told me to write an executive order that was Muslim proof that we ban Muslims but you wouldn't use the word Muslim which is what he did and I should put my cards on the table I'm very staunch Democrat always have been I'm very opposed to the election of President Trump but I'm trying to analyze this neutrally as I think the Supreme the Ninth Circuit Court of Appeals okay so the so judge what was his name Robart Robart in the in Seattle in the state of Washington at the request of the government of Washington the state state attorney general in the state of Washington issued the temporary restraining right that's all he did all he did okay and this was a problem so I guess the government took that up appealed that to the Ninth Circuit yes and they wanted to set aside the temporary restraining order so what arguments did they make well first of all that's a very rare thing to do and it's almost a certain loser just statistically looking at that on they made the argument that the president they claimed had the authority to issue an order like that and was free from review by court that's amazing it is remarkable and the Ninth Circuit said there is absolutely no precedent to support the claimed argument that the president has unrevealable authority and they emphasize that it quote runs contrary to the fundamental nature of our constitutional democracy now presidents have a lot of authority and it comes down to courts that will give them more discretion they'll give anyone else but the president does not have the authority to violate the Constitution the court was very troubled as was judge Robart that there appeared to be a Muslim ban the establishment clause of the US Constitution no law is interfering with the relate right to religious freedom you can't single that out and it looked as if he had so the position expressed by the United States by the attorney general the United States in taking this up to the Ninth Circuit solicitor general was it solicitor general I'm sorry he solicitor general goes before the Supreme Court it was the Justice Department Justice Department took the position they took in the Ninth Circuit was that this was not review not reviewable that the executive order had to stand because it was the president's decision president had a right to do it there was a point in the oral argument where both in front of judge Robart and before the Ninth Circuit each of them asked the attorney arguing the case for the US government are you claiming that the president has the authority to do this and that that no court can review it and there was a long pause sure and the answer came down yes wow wow is right that was really what all this has turned on okay so a three-judge panel it wasn't the whole Ninth Circuit which is what 20 odd judges of 27 27 judges just the three judge how are the three judges selected randomly selected I've argued in front of one of them I know one I don't know the other but they're two Democrats and Republican all the very fine judges President Trump's come out and said oh they're they're biased they're this they're that you can't count on them it's a politicized court anything but he criticized Judge Robart he did indeed for being a so-called judge yet so-called insulting the one of the judges on the three was Judge Rick Clifton who sat in this chair a couple months ago so he's definitely from Hawaii still has big connection to Hawaii he's a very prominent partner in a very prominent law firm yes he was and no no certainly wouldn't call him a flaming liberal he's a very solid judicial thinker I think straight down the middle on his cases yeah so they heard that they heard the argument that three judges what did they do well they ruled unanimously starting with what I just read you they reviewed the facts in detail it's a 28 page opinion they got into a lot of the procedural minutiae but they found irreparable injury well first they found reviewability they can't go anywhere unless they can decide that it's reviewable the government also challenged standing the US government said that the Attorney General the state of Washington did not have standing to sue on behalf of the visa holders and that was actually the first thing the court took up and that's where the court said these are students they're enrolled at state universities they contribute to the gross national gross state product of that state and they state can assert an interest on their behalf I'm summarizing what was about a five page argument then they moved to the issue of reveal what we call reviewability does the court have the power to review conduct by the president when the president says they don't have it hold right there John because that's a cliffhanger is we take a short break and we're going to come back and we're going to find what the Ninth Circuit thought about reviewability in this case we'll be right back hello this is Martin Dispang I want to get you get excited about my new show which is humane architecture for Hawaii and beyond we're going to broadcast on Tuesdays 5 p.m. here on think tech Hawaii hi this is Jane Sugimura I'm the co-host for condo insider and we're on think tech Hawaii every Thursday at 3 o'clock and we're here to talk about condominium living and issues that affect condominium residents and owners and I hope you'll join us every week on Thursday Aloha Aloha I'm Bill Sharp your host for Asian review a weekly show right here on think tech Hawaii that's devoted to substantive analytical discussion about contemporary events in Asia by Asia we mean anything from Hawaii west of Pakistan and from the Russian Far East South to Australia and New Zealand we're live we're here with John Edmonds we're delighted to be here with John Edmonds on life in the law talking about what happened in the Ninth Circuit over the president's executive order on immigration and so Cliff Hanger was gee they had to make a ruling on reviewability of the TRO that came out of Judge Robarts court in the in Seattle what did they decide and on what basis well they decided it was reviewable I read you that quote about it being unheard of they said we find no president anywhere in the jurisprudence of the United States for the Supreme Court being unable to review conduct of the president again there are a lot of cases to say they should give them great deference in certain areas but they found in this case partly because they thought there was motive for passing a Muslim ban even though they called it something else I thought that was one indicator they also talked about it was an interesting procedural and and substantive point for procedural points can sometimes be very important it was in footnote a to the opinion the court the three judge court said the executive order that was signed by the president wasn't the final one that went into effect before they issued it they found something in it that they went back and corrected only the president didn't correct it somebody on his staff an attorney on his staff in the counsel's office went in and corrected it and the president didn't sign it you can't do that no there was that itself was a flaw non-delegable non-delegable flaw now they made clear in the opinion they would have issued the tear from the TRO anyway but they talked about how inadequate it was and again they kept coming back to this idea that the government US government was telling them they couldn't review what the president and goes to probably the most fundamental axiom in our democracy we all heard this in high school grade school you have three divisions or three branches of government you have the executive judicial and legislative legislative passes the laws the executive it signs them it is the last word about you approve a piece of legislation the executive negotiates foreign policy etc but the courts make a decision about whether the laws are valid or enforceable and it gets down to what if they congress passed a law that married people couldn't sleep together they made it illegal and that's people use as an example could the congress pass a law that said married people couldn't sleep they make it a crime we all are shocked by that I hope I think that would be unconstitutional it interferes with basic freedom free dumps that are guaranteed under US Constitution but if the Congress ever got crazy and did that and there was a Supreme Court justice once who said I I'm not not in an opinion but he said I'm with the view that if the court did it if the legislator did it the legislature or the people would have to unwind a court couldn't touch it so you get into an inner again that can they make this thing illegal can the secretary the Navy say to all the ships at sea you can charge these guys with stealing shrubber as you can charge them with minor crimes but you can't get my lawyer that's when the court has to get into it when it is the president he is is no more above the law and anybody else out there let me ask you John in matters for example of diplomatic relations in matters you know that that are customarily reserved for the president that don't involve domestic situations that don't involve at least in any obvious way the rule of law in this country they are discretionary decisions they are decisions about the relationship of this country to other countries would not wouldn't that be unreviewable would you permit for example somebody who didn't agree with the domestic with rather with a diplomatic question decided by the president would you give him the right to go to a district court and get a TRO against what the president has done in diplomacy well again I come back to what the three judge panel here said they said there's no basis in our constitutional history or in our constitution for the right of the president to do that in this sort of an area now what would happen for example if you have to think of extreme cases because the president is given an enormous amount of authority it's subject to in some cases the most strict limited review one area where there's no review is nuclear weapons you know people talk about the president has his finger on the trigger and you can't stop him that's not reviewable well if the word that was no time well it is not not reviewable but that's not an order that is issued in writing it's an action that's simply taken that he's been given the power to enforce but suppose for example he was going to Russia and he announced before he went I will not sit at the table with any and anyone of Chechnya background or anyone who's Jewish or Roman Catholic or Greek something that shocks the conscience something in shocks the conscience would that be reviewable if he were to announce it would it in my opinion it would you have trouble with standing you know who's got standing to bring that because it's being done outside the United States and the president is typically given the authority to negotiate foreign policy as you've discussed no president would ever say that but in fact what you have the court here saying is no president would ever say that we can't review his conduct and no president would ever slice up countries where you get visas and don't based on a motive to exclude Muslims yeah so now the Ninth Circuit they didn't allow for an exception here they said no we can review the federal court system can review all actions of the president no there are some areas where the doctrine is he has wide discretion not car blanche but reviewed under a very very strict standard I talked about that if somebody they're beating a guy up at the prison that's reviewed under a much more strict standard than the president setting foreign policy or if he'd done this one properly but they where he does something this wide and this far reaching and there's a religious basis for it or religious motive really you know they carefully left the word Muslim out but it's clear what they were aiming at it is doesn't admit of a non-reviewability exception well on a common-sense basis we all knew what he was doing because he'd been talking about it for a year but you know it strikes me that this is one of those areas where we're pushing the legal envelope and it's only three weeks into the administration we're finding out new ways new things we have to interpret new rules we have to make new exceptions new limits it's amazing isn't it well yes question is who's pushing them this is not this is not the first time that a president has challenged the authority of the courts to review his conduct it happened with Harry Truman and the steel mills it happened much more recently with president Nixon in the Watergate case you remember he did not want to turn over the tapes and an order came down saying you turn over the tapes now when that case went up I know you're gonna ask me what I think is gonna happen to this case we're there when the Watergate tapes came up and he he was ordered to turn over the tapes scholars around the country were debating what the opinion was gonna be in the US Supreme Court remember Nixon said later when he was interviewed after he'd been well after he resigned from office under threat of impeachment he said if the president does it he can't be a crime now that's something like what president Trump is saying he's not talking about a crime but I learned reviewable unreviewable and when that case when the Watergate tapes case went to the US Supreme Court a lot of people were going back and forth a lot of journalists well you've got so many Republicans on the court they were appointed by a Republican president some of the some of the appointees were Nixon's own appointees a brilliant constitutional scholar came forward he said the opinion will be unanimous because it has to be it has to be unanimous because it's what our country is that apply here does that apply here now because one way or the other this is probably going to get to the Supreme Court whether this bit whether the Justice Department appeals the Ninth Circuit which I guess they haven't done yet right they're gonna file papers to appeal they do that well they haven't appealed the TRO whether they're gonna you know the decision of the Ninth Circuit well that is the decision of the Ninth Circuit on the TRO but there's a choice here do you go back down and try the case or do you appeal only the grant of the temporary restraining order and in my view strong view big mistake to appeal only the grant of the restraining order I think the Supreme Court probably turn it down or certainly find that it was would affirm it because what have you got you've really got this naked assertion by the government that the conducts under reviewable and it just is independent on papers cases they're not going to stand for now just showing evidence that was part of it that's right that they the Trump administration ever shown evidence that they required this now the national security if we can skate in that direction for a minute what so we only have a minute all right suppose you suppose you go back down now and you try the case with the Attorney General for Washington said we're ready and when we go we're going to start taking depositions we're going to serve in interrogatories and people have been talking about we want to see the president sacks returns we want to see his financial dealings the way you could do it is you go back down and you ask to take his deposition you serve in interrogatories and you said we want to see those things how is it relevant what does that have to do with anything well remember he imposed the ban as to some countries not others one of the countries where he didn't him didn't seek to invalidate the visas with Saudi Arabia it's acknowledged that he has business dealings in Saudi Arabia does he there and therefore have a motive to have exempted Saudi Arabia based on his own personal financial conditions very interesting question of the answer could shock the conscience too so you know I guess what you're telling me John is it's not over oh no it is not over by a long shot it's been pushed into the back a little by the force resignation of Flynn whether you it was a resignation yesterday today it was forced but okay that's a bigger crisis heading our way this one's not over you know it's not it's just starting who the big question they're asking is what did the president know and when did you know it but this one is not going away well that means you have to come back and talk about what happens now John it's not over for us either