Who knew a hearing at the 9th Circuit could be so gripping? If you were one of the tens of thousands that tuned into listen to the oral arguments before the 9th Circuit, you probably heard Justice Department Special Counsel August Flentje stutter and stammer his way through his presentation before a three-judge panel. In his defense, Flentje, a career DOJ attorney, apparently was given the job at the last minute after the Trump team shuffled around attorneys due to a conflict of interest.
Throughout the half hour that he argued the government’s case, Flentje seemed uneasy, unprepared and unable to respond to the judges when they asked about specific case law that applied to the situation. The emergency hearing was a result of an appeal by the Trump team to the 9th Circuit after Seattle federal district judge James Robart issued a sweeping temporary restraining order which basically put a halt to most of Trump’s controversial executive order which temporarily banned refugees from entering the U.S., and prohibited citizens from 7 Muslim majority countries from entering.
Flentje, who has worked for the U.S. Department of Justice for 16 years, got off to a pretty rough start. Judge Michelle Friedland, an Obama appointee, asked some pointed questions, and, at times, Flentje seemed at a loss for the answers. (listen around 14:30 in the audio below)
Judge Friedland; Are you arguing than that the President’s decision on that regard is unreviewable?
Flentje: (long pause) uh, yes , what, there are obviously Constitutional limitations but we are discussing the risk assessment.
Judge Friedland: What are the constitutional limitations that the government acknowledges?
Flentje: Well, I would, more say that the plaintiff has asserted various constitutional limitations. Uh, and I think that the case that is most on point as far as constitutional interests is Mandel and Din.
“I do not think the government was well-represented in this appeal. That the lawyer for the appeal did not have answers to the hard questions. He could have had a much more compelling argument. He did not begin well, and he did not really focus on what the court’s concerns were,” well-known attorney Alan Dershowitz said on a CNN panel following the hearing.
LawNewz.com’s founder, Dan Abrams also weighed in during the hearing:
— Dan Abrams (@danabrams) February 7, 2017
And so did Harvard Constitutional Law Professor Laurence Tribe:
Atty for US is totally flummoxed by the probing questions from Judges Friedland, Clifton and Canby both on standing and on reviewability
— Laurence Tribe (@tribelaw) February 7, 2017
Flentje seemed to have realized what happened, when he told the panel, “I’m not sure I am convincing the court.” He then emphasized that his underlying argument was that Judge Robart’s order should not be upheld because it was “overly broad.” By the end of the hearing, Flentje recovered just a bit and was much more focused during his rebuttal. He emphasized that it was “extraordinary” that a federal judge would second guess a President’s national security determinations “based on some newspaper clippings.”
That said, a poor performance in court doesn’t mean the judges will rule against the government. They will be weighing all of the arguments presented, including a 15-page response brief that was filed by Trump’s attorneys on Monday, and make their determinations shortly.
This is an opinion piece. The views expressed in this article are those of just the author.