However, on the black letter law -- and the federal rules of civil procedure's policy of efficient decision-making at the trial court level, I think 45 will lose. Again.
The lawyers for the States of Washington and Minnesota -- the folks who essentially won, on what was characterized as a quasi-preliminary injunction in the Ninth Circuit, last week -- against the Muslim Ban taking effect anywhere in the nation, would understandably like to proceed to promptly take more discovery of the Trump administration (presumably regarding intent and motive), here.
For their part, 45's lawyers are pinning their hopes on an en banc review (though they look to be well short of the required votes for that rehearing) at the Ninth Circuit -- or so they just said. By brief.
So they would like Judge Robart to stop all proceedings in Seattle's federal District trial court. That outcome would be unusual, to say the least. The Ninth Circuit's order was clear and direct. So Judge Robart could easily order 45 to start producing the documents he relied upon, in making the executive determination that these seven countries (and no others) should have been banned. [We have seen how the reporters at the New York Times, and the Washington Post and, even more completely, my buddies at EmptyWheel.net have shredded the justifications offered by Mr. Miller just yesterday on the Sunday talk shows.] The Trump team's order -- revised or otherwise -- is in deep trouble here, in my experienced opinion.] Here's a genuinely brief bit of the brief (heh!) from the plaintiffs -- filed a few minutes ago in Seattle:
. . . .The States favor expeditious proceedings in this Court. Proceeding directly to discovery, including a prompt Rule 26(f) conference by the parties, will not interfere with the case on appeal. To the contrary, it will allow this Court to consider the merits of the case in an efficient manner. Given the gravity of the States’ constitutional allegations, Defendants’ stated national security concerns, and the public interests at stake, the States respectfully submit that discovery should proceed without delay. . . .
As detailed above, the Ninth Circuit has determined that the February 3 Order operates as a preliminary injunction. In light of that conclusion, the parties should now begin discovery so that the Court may determine the merits of the States’ claims. . . .
I will update this after 8 PM EST tonight, if/when a minute order is entered from the 6 PM status hearing, before the eminently capable Judge Robart. Onward -- now, stay healthy, and feel better -- all you lil' buckaroos!
UPDATED: Valentine's Day 3 PM EST: The able Judge Robart's minute order is here -- in full -- so discovery will now commence, primarily against 45:
. . . .The court concludes that the Ninth Circuit has construed the court's TRO (Dkt. # ) as an appealable preliminary injunction and that further briefing or the submission of evidence concerning a preliminary injunction would not be appropriate in this court during the pendency of Defendants' appeal. However, the court ORDERS the parties to continue with other aspects of this litigation in accordance with the Federal Rules of Civil Procedure and this court's Local Civil Rules. If issues or motions subsequently arise that either party believes are inextricably bound up with the injunctive order, the court will address those motions or issues on a case-by-case basis in accordance with the case law set forth above. Finally, the court VACATES the briefing schedule set forth in its February 7, 2017, order. . . .