Tag: Donald Trump

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Politics U.S.

Trump is planning his post-presidency

Until Monday, the most compelling image of a failed presidency might have been Richard Nixon’s waving goodbye from the South Lawn as he left the White House for the last time as president.

Donald Trump’s removing his mask and saluting Marine One as it left that same lawn on Monday rivals it. Even for an administration defined by chaos and unpredictability, Trump’s behavior has reached a new level of bizarre.

On Tuesday, the president instructed his administration to stop negotiating with Democrats in Congress on an economic relief bill until after the election, putting at risk a pandemic-ravaged economy and causing financial markets (formerly a point of pride for Trump) to tumble.

As with most things Trump, the country has struggled to make sense. Theories abounded. Trump is experiencing mania brought on by the steroids his doctors have administered, went one. He’s making a political calculation that a stimulus package would benefit blue states, held another.

But Trump’s actions make sense for other, more Trumpian, reasons. An investigation into the president’s finances by The New York Times shows that Trump has avoided paying taxes for years. The reporting also shows that his businesses are “beset by losses” and that he has hundreds of millions of dollars in debt coming due.

Trump’s best hope for financial survival may be another reality show. “The Apprentice” brought Trump a total of $427 million, the Times found, and allowed him to inhabit the character of a billionaire character that he played all the way to the presidency. It cannot be lost on Trump that making reality TV is arguably the only business in which he has ever succeeded.

Add to that the polls, which consistently show Trump trailing his opponent, Joseph R. Biden, in most of the states and counties Trump won in 2016 and would need to carry in November to have any hope of reelection. Trump has not added to his support among any voters who did not support him four years ago, the polls show.

Taken together, circumstances give Trump every incentive to make these remaining weeks of his presidency all about him (that’s been his North Star throughout) and to stage-manage pictures, like the mask-less salute, that might work as the intro to a series.

The more conflict that Trump can sow and the more visuals he can compile, the more compelling a character he can be in the television future that awaits. America has never seen a reality TV show staring a former president, let alone one who appeals to the worst instincts of his supporters.

The White House is now the set of a TV pilot. The less likely it becomes that voters will green-light a second term, the more we can expect to see Trump chasing not votes but ratings.

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Law

Why a sitting president can be charged with a crime

In July, Representative Devin Nunes, a Republican who chairs the House Intelligence Committee, told donors gathered for a fundraiser that preserving their party’s majority in Congress matters above all because they “are the only ones” who can protect President Trump if the special counsel or the Department of Justice refuse to clear him.

The comments raise anew the question whether a sitting president can be indicted and tried for his crimes. The question has yet to be answered in practice. But among experts who have shaped my thinking about the question is Noah Feldman, a professor of constitutional law at Harvard, who in May published an analysis in The New York Review of Books.

Feldman argues from the premise that “the Constitution should not be read to allow a sitting president who has committed serious crimes to hide behind his office and avoid accountability for them.”

As he sees it, whether the crime occurred while the president is in office or before he became president, we ought to allow prosecution of the president if Congress fails to remove him from office via impeachment. I agree.

Feldman suggests a scenario in which prosecutors in New York who are investigating Michael Cohen, the president’s former lawyer, uncover evidence sufficient to charge President Trump with crimes such as money laundering or conspiracy. Could a federal grand jury indict the president?

Without precedent

A sitting president has never been indicted. Feldman chronicles debate over the prospect since 1973, when the Watergate prosecutor received a memo from a law professor at Harvard asserting that President Nixon could be indicted while in office. (The prosecutor decided not to indict Nixon once proceedings in Congress to impeach him had begun; the prosecution named the president an unindicted co-conspirator.)

The same year, the Office of Legal Counsel at the Department of Justice produced a memo concluding that all executive branch officials could be prosecuted while in office with the exception of the president, who was immune. In 2000, the office wrote a memorandum affirming that view, which has guided policy at DOJ since.

But the analysis doesn’t end there. Suppose, as Feldman does, that Trump actually shot someone on Fifth Avenue, a scenario that then-candidate Trump imagined aloud in 2016 as a brag about the loyalty of his supporters.

Feldman writes:

“Suppose further that a Republican House did not immediately impeach him, or that the Senate could not reach the two-thirds supermajority needed to remove him from office. Could we continue to believe in the rule of law if the president were able to avoid criminal prosecution as long as he remained in office?

Our conclusion should presumably be the same if we imagine that the crime was committed before he entered office but revealed only once he was in the White House. The Constitution should be not interpreted to require such a moral outrage.”

Yet the prospect of such an outrage looms. As the comments by Nunes and the refusal of Republicans in Congress to pass a bill to protect the Mueller investigation suggest, the party could look away regardless what the evidence shows and refuse to impeach him.

Feldman acknowledges the views of scholars who oppose indicting a sitting president – either because Congress, a coequal politically elected branch of government should do it, or because, in their view, the Constitution implicitly requires impeachment and removal from office to precede criminal prosecution.

As a practical matter, Feldman notes that prosecutors could name Trump as an unindicted co-conspirator (assuming the evidence warrants) and then see whether Congress impeached him. If Congress resisted, prosecutors could try to persuade the attorney general to authorize a prosecution.

Feldman notes with approval the recommendation of Cass Sunstein, Feldman’s colleague at Harvard, that we should think about impeachment, as Feldman puts it, “based on principle, without thinking of concrete scenarios connected to specific politicians we like or despise.”

Of course, if takes some imagination to picture prosecutors actually prosecuting the president. Would the FBI arrest him if he refused to turn himself in? What would the Secret Service do if FBI agents showed up at the White House with a warrant for the president’s arrest?

There’s no precedent for such scenarios, which underscore the fears of those who say that Congress alone – subject to the voters in the election that follows – should decide the fate of presidents.

Feldman counsels a focus on practical results and consequences. He also notes that we allow for the investigation and prosecution of representatives, senators and other elected officials who have committed crimes.

“In the end, pragmatic reality should outweigh high formalism when it comes to preserving constitutional government,” he writes. “In the matter of the Watergate tapes, the case was called United States v. Richard Nixon. If it becomes necessary, the Department of Justice, acting on behalf of the people, should bring the case of United States v. Donald Trump.”

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Politics

John McCain offers a lesson on legislating

Like many people, I reacted with cynicism to the news Tuesday that John McCain would return to Washington to vote on whether a push by Republicans to dismantle the Affordable Care Act (ACA) could proceed.

I presumed that McCain, who is being treated for an insidious form of brain cancer, would sound off about the need for his party to work with Democrats to shore up the health law only to vote in the end to repeal it anyway.

After voting in favor of taking up the bill, McCain admonished his party to end their habit of “trying to find a way to win without help from across the aisle.”

Exactly what I expected from the Arizona Republican.

The thought that McCain, who is being treated by doctors at the Mayo Clinic Hospital in Phoenix, might vote for a measure that would could leave 16 million people uninsured, offended me.

But in the end, I was wrong. Around 1:30 a.m. Friday, after a full-court press that included a last-minute plea from the vice president, McCain voted against the repeal. He was joined by two other Republicans: Lisa Murkowski, of Alaska; and Susan Collins, of Maine. The White House threatened Murkowski with payback that included blocking nominees from Alaska to jobs at the Interior Department and halting expansion of drilling in the Arctic National Wildlife Refuge.

In exchange for his vote to keep the repeal going, McCain reportedly sought assurances from Speaker Paul Ryan that the House would use a measure passed by the Senate as the basis to negotiate between the chambers, rather than simply pass the Senate bill and send it to the president for signature. Whatever Ryan conveyed failed to assure McCain that a compromise measure would ensue.

McCain said later he’d like to see the ACA replaced “with a solution that increases competition, lowers costs, and improves care for the American people,” but that the so-called skinny repeal that he killed did none of those things.

He called on lawmakers to “return to the correct way of legislating and send the bill back to committee, hold hearings, receive input from both sides of aisle, heed the recommendations of nation’s governors, and produce a bill that finally delivers affordable health care for the American people.”

Writing in The New Yorker, Mark Singer said McCain “chose to vote with his soul – in defiance of the bottomless soullessness that, when the ultimate moment arrived, he rejected.”

John McCain long ago earned the status of war hero. But Friday on the floor of the Senate may have marked his finest moment.

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Politics

Trump unloads via Twitter, aka Saturday

On the day after Labor Day in 1973, Elizabeth Drew, a reporter for The New Yorker, told her editor she had “an intuition” that within a year the U.S. would change president and vice president.

“At the time, this was a seemingly outlandish thought, but I go a lot on instinct and I just sensed it,” Drew writes in the introduction to “Washington Journal: Reporting Watergate and Richard Nixon’s Downfall," her book about that time.

The Watergate scandal had not yet snared Nixon, but “there was already plenty of evidence that serious wrongdoing had taken place” in the administration, Drew writes.

Saturday also felt like a day when the country might have a new president within a year.

The morning began with Donald Trump unleashing a fusillade of tweets in which he said that presidents have “complete power” to pardon aides (and, perhaps, themselves) and complained about an “intelligence leak” that allowed the Washington Post to report that Attorney General Jeff Sessions discussed the presidential campaign with Russia’s ambassador last year.

He also blasted the “fake news,” despite sitting for an hour-long interview on Wednesday with The New York Times. “Look, I think he loves the press,” said Maggie Haberman, one the reporters who interviewed Trump.

The frenzy of social media followed a week in which Trump lashed out at Sessions for recusing himself from the Russia investigation and hinted that White House aides are looking for ways to discredit prosecutors working for Robert Mueller, the special counsel who is leading the investigation.

Mueller is reportedly examining a broad range of transactions involving Trump’s businesses.

According to a Gallup poll published Friday, Trump held a job approval of 38.8% in the three months that ended June 19. That’s 23 points below the historical norm and the lowest such rating in a comparable period in the 72 years that Gallup has assessed job approval. (Trump’s rating in the first three months of his presidency also set a new low.)

The discovery on Saturday afternoon of old tweets by Anthony Scaramucci show there was a time when the new White House communications director thought two of his boss' rivals might make better presidents than would Trump.

“Odd guy, so smart, no judgment,” Scaramucci tweeted in February 2012 about Newt Gingrich after Trump said he would endorse the former House speaker for president.

Two months earlier, Scaramucci praised Mitt Romney via Twitter for a decision to “stay out of the Trump spectacle.”

Scaramucci deleted both tweets.

About an hour later, he deleted a tweet from April 2012 in which he called Hillary Clinton “incredibly competent” and expressed hope she might run for president in 2016. Scaramucci also erased tweets of support for “strong gun control laws.”

Scaramucci owned his decision to delete the tweets. “Past views evolved & shouldn’t be a distraction,” he wrote. “I serve [the president’s] agenda & that’s all that matters.”

So much for principles.

Still, in 118 characters, the communications director showed more openness than Trump has since announcing his run for the presidency.

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Politics

Both the Democratic and Labour parties are struggling to win over working-class voters

The United Kingdom’s Labour Party and the Democratic Party in the United States share a problem, which is their struggle to win over working-class voters.

Despite adding 32 seats in Thursday’s general election, the Labour Party, led by Jeremy Corbyn, who espouses left-wing populism, lost working-class votes at the expense of the Conservatives, who gained such votes despite losing their parliamentary majority.

The higher the share of people with a university degree, the better Labour fared  – and the larger the swing to Labour from the Conservatives. Despite the election being seen by many as a disaster for the Conservatives, the party has gained working-class votes.

Is the Labour Party under Corbyn capable winning more than 40.3% of the vote, as it did on Thursday? And if not, what must Labour do to reclaim a majority? Dump Corbyn, centrists say. “We could have won this election if we had a half-decent leader, as [May has] imploded,” one anti-Corbyn Labour candidate told BuzzFeed News.

The challenge on this side

Democrats here in the U.S. confront a similar challenge. Donald Trump became president in part by winning significant support in the Midwest and Rust Belt among whites without a college education.

But the distance that Democrats find themselves from such voters may be farther than they think. Writing in the Times, Tom Edsall surveys the extent of Democratic losses among working-class voters, which, it happens, was not limited to whites.

As many as 9.2 million people who voted to re-elect Barack Obama voted for Trump, based on estimates cited by Edsall. Many of the counties that switched to Trump from Obama are concentrated in the Midwest and Rust Belt.

Amazingly for the party of Franklin Delano Roosevelt and Lyndon Johnson, “Obama-Trump voters were more likely to think more Democrats look out for the wealthy than look out for poor people,” Geoff Garin, a pollster whose firm conducted the surveys and focus groups, told Edsall.

Edsall quotes Stan Greenberg, a Democratic pollster, who wrote recently that “Democrats don’t have a ‘white working-class problem.’ They have a ‘working-class problem,’ which progressives have been reluctant to address honestly or boldly.” (In his latest column, Frank Bruni reports on Democrats’ difficulties connecting with voters in New York’s Hudson Valley.)

The data that Edsall summaries shows a pullback in support for Democrats among working-class voters of all races, including many turned off by the party’s support for trade agreements that voters perceive as costing jobs, as well as a perception of the party’s being out of touch with the economic stress of voters, particularly older ones, in small town and rural America.

“For all the harm he has done, continues to do and proposes to do, Trump has successfully forced Democrats to begin to examine the party’s neglected liabilities, the widespread resentment of its elites and the frail loyalty of its supporters,” Edsall writes.

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Law

Unpacking the arguments over Trump’s ‘Muslim ban’

Arguments on Monday before the Fourth Circuit over the constitutionality of the Trump travel ban highlight a collision of legal theories.

Jeffery Wall, the acting United States solicitor general, urged the 13-judge panel to defer to the president on what the government terms a matter of immigration policy and national security. In support of his argument, Wall leaned heavily on a ruling by the Supreme Court 45 years ago in a case known as Kleindienst v. Mandel.

That case arose from accusations by a group of university professors that a decision by the attorney general to deny a visa to Dr. Ernest Mandel, a Belgian academic and self-described “revolutionary Marxist” who sought to deliver a series of lectures at Americans universities violated the professors’ – all U.S. citizens – First Amendment right to hear Mandel’s views.

The court rejected their argument. Writing for the majority, Justice Blackmun noted that Congress had delegated to the president the power to make policies and rules for the exclusion of aliens. When the president exercises that power “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant,” he wrote.

In dissent, Justice Marshall expressed concern that the court would not examine the reason the White House gives for excluding someone, especially when a group of Americans accused the government of violating the First Amendment.

“Even the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham,” Marshall wrote. “At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute.”

Mandel became law. “The court said no… we are not going down the road of inquiring into subjective motivation” of the reasons why the president would deny a visa, Wall told the Fourth Circuit on Monday.

Of course, as Amy Davidson at The New Yorker observes, “Asking for a presumption of regularity, or legality, or just basic honesty, is asking a lot, when it comes to the Trump Administration.”

Examining the government’s motives

National security merely provides a pretext for banning Muslims, argues the International Refugee Assistance Project (the lead plaintiff in the case). The plaintiffs note that the president stated clearly during and after the campaign his goal of banning Muslims from coming to the U.S. Those utterances, the plaintiffs contend, provide the court with evidence to conclude that the executive order violates the Establishment clause, which prohibits the government from favoring one religion over another.

Mandel does not control the outcome in the travel ban appeal, say the plaintiffs. Instead courts must determine whether the law has a so-called secular purpose. In support of their argument, the plaintiffs cite a series of rulings, including a 1993 decision by the Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah.

In that case, a church and its congregants practiced Santeria, which for them included ritual sacrifice of chickens, pigeons, doves, ducks, guinea pigs, goats, sheep and turtles. Prompted by the concerns of residents who did not want a Santeria church in their midst, the City of Hialeah adopted an ordinance that prohibited animal sacrifice within the municipality.

The church accused the city of aiming to exclude it in violation of the Free Exercise clause of the First Amendment. Though city officials noted that the words of the ordinance said nothing about Santeria, the analysis doesn’t end there, said the court.

Motive matters when analyzing government action that may violate the First Amendment’s guarantees of religious freedom. “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality,” Justice Kennedy wrote for the majority. “The Free Exercise clause protects against governmental hostility which is masked, as well as overt.”

The plaintiffs in the travel ban appeal contend that the court can infer the administration’s motive from a series of statements by the president that expressed either an intent to ban Muslims from entering the country or otherwise conveying anti-Muslim sentiments.

An example: Before signing the first travel ban, which was later overturned, Trump said, “This is the protection of the nation from foreign terrorist entry into the United States. We all know what that means.” On Monday, after a reporter asked the White House press secretary why the president’s campaign website still mentioned “preventing Muslim immigration,” the online page was erased.

“We think that the ordinary Establishment clause cases apply,” Omar Jadwat, who argued on behalf of the plaintiffs, told the judges on Monday. “There is no reason to extend Mandel to this context. I think what the court is to do is to determine whether [the order] was issued in bad faith by looking at the evidence in this case.”

Jadwat cited three categories of evidence: the order itself, Trump’s statements and facts in the record that are not statements, including an analysis by the intelligence arm of the Department of Homeland Security that the executive order would not reduce terrorism in the U.S.

A three-judge panel of the Ninth Circuit is slated to hear arguments this Monday in the government’s appeal of an order by a judge in Hawaii that blocked enforcement of the travel ban nationwide.

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Law

Judge blocks Trump move to slash funds for sanctuary cities

Donald Trump’s words keep getting in the way of his efforts to tighten the nation’s borders.

A federal judge on Wednesday halted enforcement of a presidential order that would have authorized the White House to cut off funds to cities that refuse to cooperate with enforcement of federal immigration laws.

The power to spend belongs to Congress and not to the president, said District Judge William Orrick in San Francisco, who ruled that a Jan. 25 order by the administration that authorizes defunding of so-called sanctuary cities contravenes the Constitution’s separation of powers.

Though government lawyers asserted in court that the order does not give the president authority to impose new conditions on federal grants, Orrick noted statements by the president in February, when he told former Fox News host Bill O’Reilly that the threat of defunding “would be a weapon” to use against cities that decline to honor requests by the federal government to hold inmates in local jails for up to two days after their scheduled release so that immigration officials can determine if they want to take the person into custody.

Orrick also noted remarks by Attorney General Jeff Sessions, who told reporters that the death of Kate Steinle, a San Francisco woman who allegedly was killed by an undocumented immigrant, occurred because the assailant “admitted the only reason he came to San Francisco was because it was a sanctuary city.”

“If there was doubt about the scope of the order, the president and attorney general have erased it with their comments,” wrote Orrick, who also cited comments by White House press secretary Sean Spicer that the order aimed “to get cities into compliance” with executive action.

The injunction, which applies nationwide, follows a series of rulings by federal judges that blocked enforcement of a presidential ban on travel to the U.S. by people from six predominantly Muslim countries. Judges in those cases cited public comments by the president and his surrogates that the White House sought to ban entry of Muslims into the U.S. in violation of the Constitution.

Floyd Abrams, the First Amendment lawyer who successfully defended The New York Times against efforts by the Nixon administration to stop the paper from publishing the Pentagon Papers, recently told the Times that Trump’s tweets also may provide evidence in court for claims that a possible federal prosecution of WikiLeaks would represent an effort to use the legal system to punish journalists.

The ruling by Orrick addresses accusations by the cities and counties of Santa Clara and San Francisco, which each charged that the potential for losing federal grants as result of their policies would force them to cut critical services and entitlements.

San Francisco estimated it stands to lose about $1.2 billion, or about 12.5% of its annual budget, if the White House defunded the city and county. Santa Clara said that federal funds constitute about 35% of its annual revenues.

Because the executive order fails to clarify what conduct might cause a locality to lose funds, the directive also violates the Fifth Amendment’s Due Process clause, which requires that laws lay out the conduct they prohibit, Orrick said.

Categories
Law

Judge in Hawaii blocks revised Trump travel ban

The Trump administration has failed in its second try to ban travel to the U.S. by people from six majority Muslim countries.

The ban, which represented a do-over by the White House after its first attempt was blocked by the courts, likely violates the Constitution’s prohibition on government’s preferring one religion over another, the U.S. District Court in Honolulu ruled on Wednesday, a day before the ban was to take effect.

A “reasonable, objective observer – enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance – would conclude that the executive order was issued with a purpose to disfavor a particular religion,” Judge Derrick Watson wrote in a 43-page ruling that halts enforcement of the ban nationwide.

The lawsuit originated with Ismail Elshikh, Ph.D., a U.S. citizen and the Imam of the Muslim Association of Hawaii, who accuses the administration of violating the Establishment Clause of the First Amendment. In court papers, Dr. Elshikh cites a series of statements by the president, his staff and surrogates that the president set out to institute a ban on Muslims seeking entry to the U.S. Dr. Elshikh points to evidence that the travel ban is unlikely to strengthen national security.

The revised ban also contravenes the Fifth Amendment’s guarantee of due process, by preventing Dr. Elshikh’s mother-in-law, a citizen of Syria who last visited the U.S. in 2005, from obtaining a visa to visit her family in Hawaii. “Citizens may have a constitutionally protected interest in specific non-citizens’ ability to travel to the United States,” the plaintiffs write in court papers.

The State of Hawaii, the co-plaintiff in the lawsuit, alleges that the revised ban will impede its ability to recruit students and faculty from the affected countries, as well as depress travel to and tourism in the Aloha State.

President Trump called the ruling an “unprecedented judicial overreach” and vowed to appeal it to the Supreme Court. At least a dozen states have sued to block the revised travel ban.

Separately, a federal judge in Maryland ruled Thursday that enforcement of the revised travel ban would violate the Establishment Clause, citing statements by the president and administration officials.

Despite the White House’s revising its executive order with the aim of the ban’s passing constitutional muster, “the history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban,” Judge Theodore Chuang wrote.

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News

The Trump border wall may be a barrier to public safety

The wall that the Trump administration plans to build along the southern border may be a barrier to national security.

To help pay for the wall, the administration is considering cuts to the Coast Guard, the Transportation Security Administration, and the Federal Emergency Management Agency, the Washington Post reports.

The Coast Guard’s annual budget may be cut 14%, to about $7.8 billion. The cut would cover teams that detect weapons of mass destruction, detain smugglers, board suspect vessels and escort ships deemed to present or be at risk.

At TSA, the proposed budget would eliminate a program that sends agents and dogs to sweep airports, rail terminals and subway stations for explosives, as well as grants that local police departments use to pay for the cost of patrolling airports. Funds that FEMA uses to help state and local governments prepare for natural disasters and respond to emergencies would be slashed as well.

The proposed cuts reflect a reprioritization of security spending. Overall, the administration is considering boosting by 6.4%, to $43.8 billion, the budget for the Department of Homeland Security.

According to the Post, some $2.9 billion would go to funding the wall along the southern border. An additional $1.9 billon would pay for more immigration officers and border patrol agents, as well as beds for immigrants held in detention.

In February, the DHS published a preliminary blueprint for the wall that sheds light on what construction entails. In addition to planning, design, construction and maintenance, funds would pay for “attendant lighting, technology (including sensors), as well as patrol and access roads.”

As you might expect from this White House, the memos obligate the builders to consult with, among others, “nongovernmental entities having relevant experience” and to use “materials originated in the United States.”

Categories
Law

Why the revised Trump travel ban may still be unconstitutional

The revised Trump travel ban may satisfy the White House and its supporters but it remains to be seen whether the edict comports with the Constitution.

In an executive order issued Monday, the administration prohibits visits to the U.S. by people from six predominantly Muslim countries. The order, which supersedes an order issued Jan. 27, includes a series of changes that are designed to withstand court challenges. The changes include a recitation of the allegedly heightened risk that visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen present to national security.

The danger “of erroneously permitting entry” of a visitor from one of the six countries who may intend to commit an act of terror “is unacceptably high,” the order tells us. Yet it contains nothing that ties nationals from the affected countries directly to threats of terrorism within the U.S.

Country of citizenship “is unlikely to be a reliable indicator of potential terrorist activity,” the intelligence arm of the Department of Homeland Security (DHS) concluded in a three-page report published in February by the Associated Press. Of 82 people who engaged in activity inspired by a foreign terrorist organization since the start of the Syrian conflict in March 2011, “slightly more than half were native-born United States citizens,” according to the analysis, which DHS has termed incomplete.

The revised travel ban does include a recitation, purportedly culled from reports published annually by the State Department, that describes conditions that can breed terrorism generally in each of the six countries. But as the Economist observes, “the edit has the flavor of a student essay whose first version contained no support for its thesis and has been patched up with a visit to a couple of websites. The logic behind categorical bans from particular nations remains dubious.”

Like the order its replaces, the revised ban also suspends for four months the admission of refugees into the U.S. “The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation,” the president writes in the revised order. But “without any context, this 300 figure is meaningless,” the Washington Post noted.

That leaves the order vulnerable to a conclusion by the courts that it remains motivated by discrimination. “The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” a three-judge panel of the Ninth Circuit wrote in its Feb. 9 ruling denying the administration’s request to reinstate the ban after a federal judge in Seattle blocked its enforcement nationwide.

What’s more, the appeals court noted, the states that challenged the initial order offered evidence of “numerous statements” by the president of his intent to ban Muslims from entering the country. With its lack of evidence tying the travel ban to an actual threat to national security, the revised travel ban does little to undo that conclusion.

Washington state Attorney General Bob Ferguson, who sued to block the ban, said in a statement Monday that his office was reviewing the revised order to determine its impact on the state and his office’s next legal steps.