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By Molly Hennessy-Fiske, Los Angeles Times (TNS)

NEW ORLEANS — A panel of three federal appeals court judges grilled government lawyers here Friday as they considered whether to lift a temporary stay on President Barack Obama’s executive action on immigration, which seeks to shield up to 5 million people from deportation.

The judges — one Democrat and two Republican appointees — had been randomly selected from among 15 judges on the conservative U.S. 5th Circuit Court of Appeals, and they did not rule on the stay from the bench. But they asked plenty of pointed questions during the unusual hearing, which included more than 2 1/2 hours of oral arguments.

The gallery was packed with about 80 spectators, including immigrants eligible for deferred action and the Louisiana attorney general, who joined to the lawsuit to stop the programs.

Both sides left feeling optimistic.

“This lawsuit is not about the wisdom of any particular immigration policy. The lawsuit is about the separation of powers,” said Scott Keller, Texas solicitor general, who argued on behalf of states that sued to stop the programs.

“This is about a 26-state coalition upholding the rule of law,” Keller said, noting that “the arguments went very well” and calling the judges, “very engaged” and “very well prepared.”

Nora Preciado, staff attorney with the National Immigration Law Center based in Los Angeles, which filed a brief in support of the federal government’s case, also left the hearing feeling encouraged.

“We remain very confident that these programs will be implemented,” Preciado said as about 50 immigrants and supporters demonstrated in a nearby park.

Immigrants traveled from across the country to attend the hearing and protest outside, drumming and chanting loud enough to be heard inside the courtroom.

The Obama administration appealed after a federal judge in Texas, Andrew S. Hanen, declined earlier this month to lift the stay, which Hanen had issued in February to put the two deferred action programs on hold while the case was pending.

The judge’s move affected a planned extension of the Deferred Action for Childhood Arrivals program, or DACA, created in 2012, and a new effort, the Deferred Action for Parents of Americans and Legal Permanent Residents or DAPA. DAPA was scheduled to start next month.

Hanen had granted the preliminary injunction to Texas, Louisiana and the 24 other states after they sued to stop the programs, arguing the president had overstepped his constitutional authority.

Arguing for the federal government in court Friday was Benjamin C. Mizer, acting assistant U.S. attorney general for the Justice Department’s Civil Division and former Ohio solicitor general.

“The states do not have standing to challenge the downstream effects of federal immigration policy,” Mizer said.
But Mizer was repeatedly challenged by Judge Jennifer Walker Elrod, a conservative George W. Bush appointee, who noted that, “You haven’t brought forward any arguments on the constitutional claims.

“In order for us to find for you on the stay, we would have to find you likely to succeed on the merits” underlying the case, Elrod said.

Mizer went on to argue that Obama and the administration were within their rights in creating the programs, and that Texas was not harmed as a result, as state officials have argued.

Keller, the Texas solicitor general, challenged that view. Keller said states would incur “substantial” added costs, such as providing driver’s licenses, education and health care, for those living in the country illegally and who qualify for deferred deportation. He said suggestions that such immigrants provide benefits to the states were “irrelevant” and “speculative” — and that such benefits would not offset the costs.

He argued that Obama bypassed Congress to create a policy of deferred action that the states were forced to follow without proper administrative notice.

“This would be one of the largest changes in immigration policy in our nation’s history,” Keller told the panel.
Judge Stephen A. Higginson, an Obama appointee to the court and former federal prosecutor, questioned how much discretion federal officials have in evaluating whether applicants qualify for deferred action.

He noted that the Department of Homeland Security is “deporting more than ever before,” that deferred action postpones but doesn’t halt deportation and that those screening DACA applications often requested additional information — indicating it was discretionary, not a rubber-stamp approval policy.

It’s not clear how soon the panel will rule. If the administration loses, it can appeal the closely watched case to the full 5th Circuit and ultimately to the U.S. Supreme Court.

(c)2015 Los Angeles Times, Distributed by Tribune Content Agency, LLCPhoto: ndlon via Flickr


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  • 1.Why did Trump choose to hide certain specific files and not others at Mar-a-Lago? What were the criteria that Trump used to keep some files concealed and not others? Who selected those files? Did Trump consult or direct anyone in his selection of secret files? Trump was notorious for being too impatient to read his briefing papers, even after they had been drastically shortened and simplified. Is there the slightest evidence that he spirited these papers away so that he could consult or study them? Who besides Trump knew of the presence of the files he had concealed at Mar-a-Lago?
  • 2. Mar-a-Lago has an infamous reputation for being open to penetration even by foreign spies. In 2019, the FBI arrested a Chinese woman who had entered the property with electronic devices. She was convicted of trespassing, lying to the Secret Service, and sentenced and served eight-months in a federal prison, before being deported to China. Have other individuals with possible links to foreign intelligence operations been present at Mar-a-Lago?
  • 3. Did members of Trump's Secret Service detail have knowledge of his secret storage of the files at Mar-a-Lago? What was the relationship of the Secret Service detail to the FBI? Did the Secret Service, or any agent, disclose information about the files to the FBI?
  • 4. Trump's designated representatives to the National Archives are Kash Patel and John Solomon, co-conspirators in the investigations into Russian interference in the presidential election of 2016, the Ukraine missiles-for-political dirt scandal that led to the first impeachment in 2019, and the coup of 2020. Neither has any professional background in handling archival materials. Patel, a die-hard Trump loyalist whose last job in the administration was as chief of staff to the Acting Secretary of Defense, was supposedly involved in Trump’s “declassification” of some files. Patel has stated, “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves."
  • The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified.” If Pat Cipollone, the White House legal counsel, did not “generate the paperwork,” was he or anyone on his staff aware at all of the declassifications? The White House Staff Secretary Derek Lyons resigned his post in December 2020. Did his successor, who held the position for a month, while Trump was consumed with plotting his coup, ever review the material found in Trump’s concealed files for declassification? Or did Patel review the material? Can Patel name any individual who properly reviewed the supposed declassification?
  • 5. Why did Trump keep his pardon of Roger Stone among his secret files? Was it somehow to maintain leverage over Stone? What would that leverage be? Would it involve Stone's role as a conduit with the Proud Boys and Oath Keepers during the coup? Or is there another pardon in Trump’s files for Stone, a secret pardon for his activities in the January 6th insurrection? Because of the sweeping nature of the pardon clause, pardons can remain undisclosed (until needed). Pardons are self-executing, require no justification and are not subject to court review beyond the fact of their timely execution. In other words, a court may verify the pardon was valid in time but has no power to review appropriateness. A pardon could even be oral but would need to be verifiable by a witness. Do the files contain secret pardons for Trump himself, members of his family, members of the Congress, and other co-conspirators?
  • 6.Was the FBI warrant obtained to block the imminent circulation or sale of information in the files to foreign powers? Does the affidavit of the informant at Mar-a-Lago, which has not been released, provide information about Trump’s monetization that required urgency in executing the warrant? Did Trump monetize information in any of the files? How? With whom? Any foreign power or entity? Was the Saudi payment from its sovereign wealth fund for the LIV Golf Tournament at Trump’s Bedminster Golf Club for a service that Trump rendered, an exchange of anything of value or information that was in the files? If it involved information in the files was it about nuclear programs? Was it about the nuclear program of Israel? How much exactly was the Saudi payment for the golf tournament? The Saudi sovereign wealth fund gave Jared Kushner and former Trump Secretary of the Treasury Steven Mnuchin $2 billion for their startup hedge fund, Affinity Partners. Do the Saudis regard that investment as partial payment for Trump’s transfer of nuclear information? Were Kushner or Mnuchin aware of the secret files at Mar-a-Lago?
  • 7.Did Trump destroy any of the files? If so, when? Did those files contain incriminating information? Did he destroy any files after he received the June subpoena?
  • 8.Were any of the secrets of our allies compromised? Has the U.S. government provided an inventory of breaches or potential breaches to our allies?
  • 9.Does the resort maintain a copying machine near the classified documents that Trump hid? Were any of the documents copied or scanned? Are Trump’s documents at Mar-a-Lago originals or copies? Were any copies shown or given to anyone?
  • 10.Trump’s lawyer Christina Bobb has revealed that a video surveillance system covers the places where Trump hid the files at Mar-a-Lago, and that the system is connected to a system at his other residences at the Bedminster Golf Club in New Jersey and Trump Tower in New York City. According to Bobb, Trump and members of his family observed the FBI search and seizure of his files at Mar-a-Lago, “actually able to see the whole thing” through their surveillance system. Who has that surveillance system recorded entering the rooms where the files were kept?

Kevin Bacon, right, in "The Following"

The aftermath of the August 8, 2022 search of the Mar-a-Lago club, former President Donald Trump’s Florida home, isn’t the first showdown between the FBI and a cult leader.

The Following, a 2013 Fox Pictures series, played out in similar fashion. Three seasons was enough for the producers and it’s been nine years since our introduction to Joe Carroll, English professor-novelist-serial killer, so there’s a spoiler risk -- but not enough to prevent the comparison.

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