Welcome to Overnight Regulation, your daily rundown of news from the federal agencies, Capitol Hill, the courts and beyond. It’s Monday evening here in Washington where President Trump’s decision to fire FBI Director James Comey has thrown newly minted Deputy Attorney General Rod Rosenstein into the spotlight. The Hill’s Jonathan Easley has that story here. And the White House is refusing to say if Trump has recordings of his conversations with Comey. The Hill’s Jordan Fabian has more on that here.

 

THE BIG STORY 

The administration headed back to court Monday to defend President Trump’s travel ban.

Three judges on the 9th Circuit Court of Appeals in Seattle heard the government’s claim that a Hawaii district judge was wrong in blocking the travel order nationwide.

Trump’s order seeks to temporarily ban nationals from six majority-Muslim countries from entering the U.S., as well as refugees. 

Acting Solicitor General Jeffrey Wall argued that both the Constitution and an act of Congress give the president broad authority to prevent aliens abroad from entering the country when he deems it appropriate for the safety of the nation.

The three judges — all appointed by President Bill ClintonBill ClintonOvernight Regulation: White House back in court to defend travel ban Poll: Trump approval drops to 38 percent White House returns to court to fight for travel ban MORE — grappled with whether to consider Trump’s statements during the presidential campaign about banning Muslims.

« The executive order sets out national security justifications, but how is a court to know if in fact it’s a Muslim ban in the guise of national security justifications? » Judge Ronald Gould asked.

Wall said past precedent does not call on the court to make that sort of determination or second-guess the national security determinations of the president.

Judge Michael Day Hawkins repeated a question a 4th Circuit judge asked last week.

« Has the president ever disavowed his campaign statements? Has he ever stood up and said, ‘I said before I wanted to ban all members of the Islamic faith from entering the United States of America, I was wrong. I’ve consulted with lawyers, I’m now addressing it simply for security needs’? »

Wall claimed Trump has.

« Over time, the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them, » he said. « And over time, he and his advisers clarified that what he was focused on was groups like ISIS and al Qaeda. »

Last week, nine judges on the Richmond, Va.-based 4th Circuit Court of Appeals heard arguments in the government’s appeal of a separate order blocking the ban from a district court judge in Maryland.

Neal Katyal, former acting solicitor general under President Barack ObamaBarack ObamaTrump to disclose 2016 financial info after Pence Trump faces tough choices in FBI pick Clinton launches new political action group MORE, represented Hawaii on Monday. He argued the ban constitutes nationality-based discrimination given what Trump said during the campaign.

Though the statements were profound, Judge Richard Paez said, it’s a little concerning that they were made in the midst of a highly contentious campaign.

« Don’t you need to look at it from that perspective as well? » he said.

But Katyal countered that Trump rekindled those statements in actions as president.

« First, when he issued the first executive order, he read the title of the executive order, looked up at the camera and said, ‘We all know what that means,’  » he said. « If it was clear from the title what it meant, he wouldn’t have had to say it. »

When he issued both executive orders, Katyal noted that his statements about banning Muslims were still on his campaign website.

« You don’t, your honor, need to be Sigmund Freud in order to affirm the district court, » he said. « You simply must ask, as the Supreme Court has told you, what would an objective observer think with these sorts of statements. »

In February, the 9th Circuit refused to reinstate Trump’s first travel ban after it was blocked by a federal district court judge in Washington. 

To address the court’s concerns, Trump revised the order and removed Iraq from the list of banned countries, removed an indefinite ban on Syrian refugees and eliminated language that gave preference to religious minorities when the refugee program resumed.

Trump has repeatedly attacked the Ninth Circuit for ruling against his first travel order. Late last month, he said he was looking at ways to break up the court, which has long been a target of conservatives.

In one tweet in April, Trump said the court has a « a terrible record of being overturned (close to 80%). They used to call this ‘judge shopping!’ Messy system. »

Click here for the story.

 

ON TAP FOR TUESDAY 

The Senate Banking, Housing and Urban Affairs Committee will hold a hearing to consider the nominations of Sigal Mandelker to be Under Secretary for Terrorism and Financial Crimes, Marshall Billingslea to be Assistant Secretary for Terrorist Financing, and Heath Tarbert to be an Assistant Secretary — all at the Department of the Treasury. Mira Radielovic Ricardel will also be considered for Under Secretary of Commerce for Export Administration.

The Senate Environment and Public Works Subcommittee on Transportation and Infrastructure will hold a hearing to look at ways to leverage federal funding for infrastructure projects. 

 

TOMORROW’S REGS TODAY 

Voter fraud: President Trump will publish his executive order establishing a commission to study registration and voting processes used in federal elections.

Vice President Mike PenceMike (Michael) Richard PenceGOP senators lukewarm to lawmaker leading FBI Overnight Regulation: White House back in court to defend travel ban New regs for Tuesday: Voter fraud probe, internet providers MORE will chair the Presidential Advisory Commission on Election Integrity, which will be made up of up to 15 members appointed by the president.

Trump signed the order last week to start an investigation into his claim of mass voter fraud during the 2016 election. Trump has so far provided no evidence to back up the claim.

Internet providers: The Federal Communications Commission is proposing a rule to make it easier for broadband internet providers to build, maintain, and upgrade their network.

Under the rule, FCC wants to streamline and accelerate its five-month timeline for processing company requests to connect to utility poles. 

The public has 30 days to comment on the proposed rule.

 

NEWS RIGHT NOW 

Supreme Court sides with nursing home in arbitration case

Supreme Court refuses to hear appeal in NC vote ID case

Lawmakers push back against Trump offshore drilling review

US, Europe to engage in ‘high-level’ talks over laptop ban

White House will let small businesses circumvent HealthCare.gov

FTC goes after tech support scams

John Oliver urges net neutrality supporters to tone down FCC comments

Former Pentagon chief: Arctic drilling order could threaten security

Senators search for compromises over House’s drastic Medicaid changes – The New York Times 

Trump reassures farmers immigration crackdown not aimed at their workers – Reuters 

 

BY THE NUMBERS 

6: Number of proposed rules federal agencies will issue Tuesday 

11: Number of final rules federal agencies will issue Tuesday  

(Source: Federal Register)

We’ll work to stay on top of these and other stories throughout the week, so check The Hill’s Regulation page (http://thehill.com/regulation) early and often for the latest. And send any comments, complaints or regulatory news tips our way, tdevaney@thehill.com or lwheeler@thehill.com. And follow us at @timdevaney and @wheelerlydia.

Senior administration officials have strained their credibility with the public with months of false, misleading or tortured statements.

President Donald Trump was accused of leaking highly classified information to Russian officials, and White House officials wanted to fiercely rebut the charges.

But when senior national security officials strode to a podium on the West Wing driveway Monday night, they spoke for an administration that has strained its credibility by issuing a series of false, misleading or tortured statements on far less important matters. And they spoke for a president who less than a week ago said publicly that his aides and surrogates can’t be expected to give accurate statements, because they don’t always know what’s going on.

Story Continued Below

“This story is false,” said Dina Powell, a deputy national security adviser. “The story, as reported, is false,” said H.R. McMaster, the national security adviser, hedging his words.

News outlets — including The New York Times and Reuters — confirmed the story reported by The Washington Post and published anyway, seemingly unconcerned about the denials, which came from two officials who have been respected in Washington for decades. The episode underscored Trump’s challenge after months of misstatements over far less consequential matters.

“Their credibility is completely shattered. They’ve engaged in serial lying to the American people on issues big and small — beginning with the crowd size photos. It’s unprecedented for an administration, from the top on down, to embrace a strategy of deception and lying,” said Steve Schmidt, a Republican consultant and former campaign manager for John McCain.

“Even people who have built up reputations for integrity over a lifetime of public service, they risk squandering it in this administration,” Schmidt said.

White House officials note that the media is historically unpopular, and they love combating mistakes in news stories, often posting them on Twitter. “FAKE NEWS!” Trump has posted repeatedly. Senior officials have excoriated media outlets publicly and privately, with chief strategist Steve Bannon calling the media “the opposition party.” And they note that polls show their supporters trust Trump more than the media.

Spicer didn’t respond to several phone calls seeking comment.

Still, among reporters who cover the White House, on-the-record statements from Trump’s White House carry little weight because Trump has told hundreds of falsehoods, tracked by PolitiFact and other websites. Sometimes, in a single campaign-style rally, the president will say more than a dozen things that are not true — or lack all context. He has made unsubstantiated claims, like saying former President Barack Obama put a “tapp” on his phones at Trump Tower.

Trump publicly, in “The Art of the Deal,” has bragged about his ability to exaggerate.

Spicer, the press secretary, has vehemently defended Trump both publiclyand privately— sometimes screaming at reporters for their reliance on anonymous sources. But he lost credibility early among reporters for his repeated untruths about the crowd size at Trump’s inauguration.

Last week, Spicer told reporters they were incorrect for even suggesting that Trump decided to fire FBI Director James Comey before a memo arrived from Deputy Attorney General Rod Rosenstein. Trump said within two days that he would have fired Comey no matter what the memo said, directly contradicting his spokesman and Vice President Mike Pence.

« They started burning through their credibility on Inauguration Day, » Sen. Brian Schatz (D-Hawaii) told POLITICO. « But they devoured it during the Comey story, so now their attempts to push back are basically being ignored, and rightly so. »

Sometimes, White House officials have been given specific talking points by Trump, as when Spicer crowed that Trump had the largest inauguration crowd of all time, which wasn’t true. And sometimes Trump just changes his story.

“As a very active President with lots of things happening, it is not possible for my surrogates to stand at podium with perfect accuracy!” Trump wrote on Twitter last week. He added: “Maybe the best thing to do would be to cancel all future ‘press briefings’ and hand out written responses for the sake of accuracy???”

The factually challenged comments have become something of a joke. On “Saturday Night Live” this weekend, Melissa McCarthy, who plays Sean Spicer on the show, asked whether Trump had ever passed along misleading information for him to share with the media.

“Only since you started working here,” Trump, played by Alec Baldwin, said.

For reporters and spokespeople, the dynamics are different in Trump’s White House, said Stu Loeser, a longtime press secretary to New York Mayor Michael Bloomberg. Loeser said spokespeople often spin aggressively or tell small fibs — “like a spokesman saying, ‘I haven’t seen your story,’ even though it’s been out there for 11 hours.”

But in Trump’s White House, the denials or comments are likely to matter far less — which could hurt reporters and spokespeople alike if both sides are interested in the truth.

“You need to reserve credibility for when it matters — when a call comes in late in the day and you need to be able to say to a reporter, all the jousting back and forth aside, ‘I’ve never lied to you about something and this isn’t true,’ said Loeser.

“If you’ve blown your credibility on crowd size or semantics, people say: What else are they going to lie about?”

Seung Min Kim contributed to this report.