In it, but not of it. TPM DC

The Trump administration’s harsh immigration policies — including the forced separation of parents and children and the denial of parole to asylum-seekers without criminal records — are running into a buzzsaw in federal courtrooms across the country. Again and again, conservative and progressive judges alike are not only ruling against the government, they are breaking from their usual measured legalese to excoriate the administration for misrepresenting the current state of immigration, making promises in bad faith, and flouting both federal law and the Constitution.

These repeated legal setbacks, however, have not entirely stripped the administration of the ability to enact harsh immigration policies, including ones that will lead to future family separations and the denial of asylum to formerly eligible immigrants fleeing deadly conditions in their home countries.

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For weeks, U.S. District Judge Dana Sabraw has praised the Trump administration’s uneven progress on reuniting the thousands of immigrant families it had forcibly separated – and has held off on holding the administration in contempt even when it blew the reunification deadline for dozens of children younger than 5 years old.

But at a status hearing in San Diego on Monday in the American Civil Liberties Union’s class action lawsuit on the reunifications, Sabraw had had enough.

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In response to a Freedom of Information Act (FOIA) lawsuit, the Trump administration released a survey of FBI employees’ morale taken after the controversial ouster of former Director James Comey. The data from the annual survey has been released to the public each year since 2013, but the administration decided to keep the 2018 information under wraps until Ben Wittes and Scott Anderson of the Brookings Institution and Lawfare sued for its release.

On Friday, Wittes and Anderson received the report, which showed a sharp drop in rank-and-file FBI workers’ morale and confidence in their leadership, though satisfaction at the bureau remains high overall.

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The Trump administration is refusing to reunite nearly a dozen immigrant families with children younger than 5 based on the criminal record of the parent — even when the record in question involves a non-violent crime or even the lack of a conviction.

Attorneys challenging the separations and former DHS officials tell TPM that only a criminal record that indicates an imminent danger to the child should justify the continued separation, saying that records that would not have triggered removing the child from the parent in the first place in the past should not be used now to keep the family apart.

Attorneys for the American Civil Liberties Union, who won a national injunction against the Trump administration forcing them to reunite all of the roughly 3,000 families separated under the “zero tolerance” policy, also tell TPM that the administration has not yet given them concrete proof of the criminal records they are citing to deny reunification — making it impossible for them to investigate and contest their authenticity and severity.

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Normally, a member of Congress who disavowed her own party’s president and was held under 40 percent in a primary would be a dead woman running in a primary runoff. But Rep. Martha Roby (R-AL) looks like she’ll survive her reelection fight next Tuesday — and she has Nancy Pelosi and President Trump to thank.

Roby called then-candidate Donald Trump “unacceptable” when his Access Hollywood video surfaced late in the 2016 campaign, demanding he drop out of the race. She followed up weeks later by saying she couldn’t look her children in the eye “and justify a vote for a man who promotes and boasts about sexually assaulting women.”

Those comments enraged many local Republicans at the time, who mounted a write-in campaign against her that siphoned off nearly 10 percent of the vote as she was held to an 8-point win in a district Trump won by nearly a two-to-one margin. That set up Roby for a tough 2018 election.

But she got lucky, as her primary runoff opponent, Democrat-turned-Republican former Rep. Bobby Bright, did the one thing that might piss off GOP activists even more than insulting Trump: He voted for Rep. Nancy Pelosi (D-CA) to be speaker of the House in 2008.

That was part of the reason why Trump agreed to endorse Roby last month, after Bright edged out other, more hardline conservative candidates to push her into the primary runoff.

Alabama Republicans think that will be enough to give her another term in Congress.

“Fair or unfair, a lot of Trump supporters took what she said really personally, as though she had wronged them somehow. The only person who could absolve that in their eyes is Trump himself – and he did,” Todd Stacy, a local political blogger who was Roby’s spokesman during the 2016 campaign, told TPM.

Perry Hooper, Trump’s Alabama state chairman, has known both candidates for years. His friendship with Bright goes back to Bright’s days as Montgomery mayor more than a decade ago, and he’s known Roby since she was little (their fathers were both local judges and his wife was Roby’s high school cheerleading coach). He’s backing Roby in the race, and encouraged Trump to do the same before the president’s endorsement.

“She upset me a couple years ago when she said the president should step aside … however, Martha was reelected and she has stuck with and supported the president probably more than any other congressman,” he said. “She’s been endorsed by the president. And the fact that Bobby supported Nancy Pelosi really hurts. … Pelosi is like the devil among Republicans.”

Hooper wasn’t the only one pushing the White House to back Roby, who is close to House GOP leadership. Speaker Paul Ryan (R-WI) and Majority Leader Kevin McCarthy (R-CA) did so as well.

As Trump said, Roby has worked hard to embrace the president’s policies since his victory. While she’s never apologized for her 2016 remarks, she’s voted party-line on key items of the president’s agenda, worked alongside his daughter and adviser Ivanka on her push to expand the child tax credit, and has appeared several times at White House meetings for bill signings and policy events.

Conservative bona fides alone haven’t been enough to save other Republicans who criticized Trump, as Rep. Mark Sanford’s (R-SC) recent primary loss and Sen. Jeff Flake’s (R-AZ) decision to retire rather than lose his primary have proven. But unlike them, Roby hasn’t remained a critic of the president. And it sure helps to have a former Democrat to run against.

Money also matters. Roby had more than $700,000 in the bank as of her pre-runoff filing with the Federal Election Commission to just $160,000 for Bright, who is partly self-funding his campaign. That’s allowed her to deluge the airwaves with ads highlighting his Democratic past and her big endorsement.

Bright’s allies admit that the spending disparity has been a problem.

“She’s putting out these commercials, these lies. People are thinking Bobby is this horrible liberal and he’s really more conservative than her,” Jeana Boggs, a local Tea Party activist who’s backing Bright after supporting another candidate in the first round of voting, told TPM.

Bright argues that he’s the real conservative in the race – and he has a long track record of fairly conservative policy views. Bright voted more with Republicans than Democrats on the big issues during his two-year stint in office, and when he and Roby squared off in 2010 he ran ads highlighting his votes with the GOP and tried to get to her right on immigration, accusing her of slow-walking a push to keep local businesses from hiring undocumented immigrants.

The two go back even further than that 2010 contest, in which Roby squeaked out a two-point win: She was on the Montgomery city council when he was mayor more than a decade ago.

Bright argues his one major apostasy on the right, voting for Pelosi, was to ensure he could get good committee assignments and bring home the bacon for the poor district, which includes downtown Montgomery and much of the blue-collar agricultural southeastern corner of the state, known as the Wiregrass region.

I didn’t vote for Nancy Pelosi. Let me clear that up, I voted for the district,” he said.

Bright says that ensured he got seats on the House Armed Services and Agriculture committees, two key issues for the farming- and military-heavy district. He slams Roby for abandoning her own seats on those committees to go to the powerful House Appropriations Committee: “She got off the two most important committees that affect people down here.”

Roby’s team points out that she now has a spot on the defense appropriation subcommittee, and that the chairmen of her former committees both endorsed her.

“He can say whatever he wants about how conservative he is, but that vote speaks very loudly,” Roby spokesman Blake Harris told TPM. “She’s had a great relationship with the White House and voted for Trump’s agenda.”

Bright has embraced Trump hard in the race, echoing the president’s calls to “drain the swamp,” though he said he didn’t love everything about the president personally.

“Do I embrace all the personal issues he confronts? No, I don’t,” he said. “But I do endorse and embrace his efforts to build our country, make it strong.”

As Bright points out, Trump doesn’t have a sterling track record in Alabama endorsements – Sen. Luther Strange (R-AL) lost his primary in spite of Trump’s support, and Roy Moore lost his Senate bid after Trump endorsed him in the general election. But neither candidate’s weakness was a lack of fealty to Trump, like Roby’s was.

Bright claimed that Trump “struck a deal with Roby and her lobbyist Paul Ryan and the establishment in Washington,” exchanging his endorsement for promises of support.

Whether or not it’s true, the support could play major dividends for her on Tuesday.

“The Trump endorsement was very, very helpful to Martha. She was already well positioned in this runoff because of Bright’s Democratic history and I suspect the endorsement sealed the deal for her,” said Toby Roth, a top Alabama GOP consultant and lobbyist who’s backing Roby in the race.

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In a hearing in federal court on Thursday, a judge weighed whether to order the reunification of children separated from two immigrant parents who sued the federal government, before the pending July 26 deadline set by a judge in California.

U.S. District Judge Paul Friedman oversaw a hearing in the case of three immigrant families separated from their children who sought for the court to intervene and reunite them with their children promptly. One of the parents has been reunited with her three children since the case began, but the other two in the case remain apart from their children.

The judge said that he needed more information from both the lawyers for the parents and from the government before he could issue an order in the case. Friedman must determine whether to grant plaintiffs a temporary restraining order, which would call for better communication and information for the parents, and a preliminary injunction, which would call for the quick reunification of the two remaining families.

Friedman quizzed lawyers for the immigrant parents on why he should intervene and order the two parents reunified with their children given that a federal judge in California had already ordered certain parents to be reunified by July 26. He asked Jerome Wesevich, one of the lawyers representing the parents, to explain why they should be reunited with their kids in 72 hours, as opposed to by July 26.

Wesevich argued that there is “no specific reason” and no evidence that the government should not reunite families as quickly as possible. Earlier in the hearing, Wesevich argued that the government “has enormous power to act” and that the proof that the government is doing everything it can is “underwhelming.”

The judge noted that the government said in a memo made public on Wednesday that it currently anticipates that it will reunify at least one additional parent in the case, identified with the initials A.P.F., with his child by July 26. However, Wesevich argued that the government’s plans are subject to change.

Friedman suggested that he had at least some sympathy for the parents separated for their kids and any harm caused by continued separation.

“I get the argument that each day is irreparable harm,” he said, adding that the medical and anecdotal evidence from the parents is “persuasive.”

Yet, Friedman asked how additional information on reunification plans, which the lawyers for the parents have asked for in a temporary restraining order, would help reduce any harm.

Wesevich argued that it causes emotional damage “to not know where your children are” and that the damage caused to the children will impact their relationship with their parents upon reunification.

“Their irreparable harm is their parents’ irreparable harm,” Wesevich said.

The lawyer arguing for the government, Nicole Murley, said that it’s not fair to say that the government is not trying to reunite families, citing the announcement Thursday morning that 57 young children had been reunified with their parents.

Friedman noted, however, that the lawyers for the parents claimed in a filing last week that case managers, who would be able to provide updates on the children, are often unavailable or unresponsive. Murley replied that the government is trying to provide information and asked that the plaintiffs bring concerns directly to lawyers for the government.

The bulk of the Thursday hearing was spent discussing the status of one of the parents in the case, identified by her initials E.F. The government argued that E.F., who failed her initial test to qualify for asylum, certified on a waiver that she would want to be deported without her child. However, the lawyers for E.F. argued that their client did not understand the waiver and does not want to be removed from the country without her child. Friedman said that he had insufficient information on the wishes of E.F., and asked both the plaintiffs and defendants to submit updates on Friday about her status.

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Peter Strzok, a former top FBI official who has come under fire for sending text messages critical of President Trump in 2016, denied in congressional testimony Thursday that he let his personal opinions impact actions that he took in the agency’s investigations, according to prepared testimony released by his lawyers. His opening remarks in front of the House Judiciary and Oversight Committees also ripped Republican lawmakers for giving him a “wholly inadequate” opportunity to prepare for Thursday’s open hearing.

“I understand we are living in a political era in which insults and insinuation often drown out honesty and integrity. But the honest truth is that Russian interference in our elections constitutes a grave attack on our democracy,” Strzok said in his prepared remarks. “Most disturbingly, it has been wildly successful — sowing discord in our nation and shaking faith in our institutions. I have the utmost respect for Congress’s oversight role, but I truly believe that today’s hearing is just another victory notch in Putin’s belt and another milestone in our enemies’ campaign to tear America apart.”

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This post has been updated with new information from the plaintiffs’ attorney.

A Central American asylum seeker whose three children were forcibly taken from her in mid-May said this week that she suspects the Trump administration retaliated against her for traveling to the U.S. with the “caravan” of migrants that was the center of a political firestorm earlier this year.

The woman, identified in court documents by her initials M.G.U. to protect her identity, is part of a group of three Central American asylum-seekers held in ICE detention in Texas who are suing for the return of their children. M.G.U.’s attorney Peter McGraw told TPM following the initial publication of this report that she was reunited with her three sons, ages 2, 6, and 13, in New York on July 11. He has not yet been informed if the family will be released or detained together.

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The Senate Republicans and Democrats who are being watched most closely in the fight to confirm President Trump’s newly-minted Supreme Court pick were not eager to show their cards the day after the selection of Judge Brett Kavanaugh to replace Justice Anthony Kennedy was announced.

“I am going to be able to give you more of a reaction after I have an opportunity for more thorough review,” said Sen. Lisa Murkowski (R-AK), whose support for Kavanaugh is crucial given her role in sinking the Senate GOP’s Obamacare repeal efforts and her position in favor of abortion rights, which could be at risk if Kavanaugh is confirmed.

“Look at my statement,” Sen. Bill Nelson (D-FL), who is facing a costly re-election battle, said repeatedly when asked about his thoughts  on the judge.

Republicans leaders said they were hopeful that they’d be able to secure bipartisan support for Kavanaugh, an extremely conservative judge on the federal appeals court in Washington, D.C. With the margin tight — a single Republican defection could tank the nominee if Democrats unanimously oppose him — there is already pressure from Kavanaugh’s supporters on red state Democrats to back Kavanaugh. Three Democrats voted in favor of confirming Trump’s first Supreme Court pick, Justice Neil Gorsuch.

“We are accumulating all of his decisions right now…the writings that he’s made,” said Sen. Joe Donnelly (D-IN), who is up for re-election in November and voted for Gorsuch. “We look forward to having a meeting with him. I presume he’ll come over. And then I’ll start to make the decision.”

Sen. Heidi Heitkamp (D-ND), another yes vote for Gorsuch who’s up for re-election in 2018, declined to give her thoughts on the nominee, as her aide instructed reporters to refer to her statement from Monday evening,

“I haven’t met with him, so I don’t know,” Heitkamp said.

Even Sen. Sherrod Brown (D-OH), who announced his opposition to Gorsuch immediately after his selection was announced, said he was withholding his decision on Kavanaugh until he had the opportunity to meet him.

Brown said he never felt pressure to do things that are “wrong” and that he was “troubled” generally with the direction of the court in decisions siding with corporations over workers. He also alluded to a lawsuit challenging Obamacare’s protections for consumers with pre-existing conditions that’s expected to make it to the Supreme Court.

“I want to look him in the eye and talk to him about pre-existing conditions because there are literally millions of Ohioans who would potentially lose their insurance if these five men on the court would take away their consumer protections,” Brown said.

A key question is whether Democrats who may ultimately support Kavanaugh will wait to announce their vote until after Kavanaugh has secured the support of all 50 GOP senators (not counting Republican Sen. John McCain who is undergoing cancer treatments in Arizona, assuming he is unable to return for a confirmation vote).

Republican leaders indicated they would like to move briskly on the confirmation process, aiming to confirm Kavanaugh in the roughly two-month time frame that Justices Gorsuch and Elena Kagan won confirmation votes after their nominations were announced.

Sen. Susan Collins (R-ME), like Murkowski, has expressed concerned about a Supreme Court reversal on abortion rights — cemented in the landmark decision Roe v. Wade — and has defied GOP leadership in the past, including on repealing the Affordable Care Act.

“I believe the judge has impressive credentials, he clearly has extensive experience having spent more than a decade as a judge on the D.C. circuit,” Collins said. “Never the less, I obviously want the opportunity to sit down with him one on one and to get a better sense of his judicial philosophy.”

She said that Kavananugh should not have to answer direct questions about Roe v. Wade, but that “there are other ways to get at the issue.”

Sen. Rand Paul (R-KY) is another Republican vote to watch, given his libertarian views on privacy, which are at odds with some of Kavanaugh’s decisions.

Paul at first declined to answer questions about Kavanaugh Tuesday. But when asked specifically about a Kavanaugh opinion upholding the government’s collection of phone metadata without a warrant, Paul said that he was “keeping an open mind” and would “follow the process.”

Murkowski pointed to the “Republicans and Democrats alike” who have already have announced their vote on Kavanaugh.

“In my view, they’re not doing what it is that we need to do, which is to take this role of advice and consent seriously and do our homework,” Murkowksi said. “There’s a lot to look at with Judge Kavanaugh.”

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