A Virginia judge helped tee up an argument likely to be fought all the way to the U.S. Supreme Court over President Donald Trump’s efforts to restrict travel to the U.S. from six predominantly Muslim countries.

U.S. District Judge Anthony Trenga in Alexandria on Friday denied a request to block Trump’s March 6 executive order, saying he’s not going to psychoanalyze the president for his motives in drafting the travel ban. That put Trenga at odds with other federal judges who have ruled the president’s past comments can be taken into account in determining whether he intended to discriminate against Muslims.

If the Supreme Court takes up Trump’s executive order, one question it’s likely to review is whether the directive is based on religious animus, said Tara Grove, a constitutional law professor at William Mary Law School in Virginia.
 
“One of the key questions will be whether the court should look only at the text of the executive order or whether it should consider other evidence, including statements that President Trump and others have made,” Grove said.

The win in Virginia is important symbolically for Trump, said Danielle McLaughlin, a lawyer at Nixon Peabody.

« This does give some teeth to his argument, at least in the court of public opinion, » McLaughlin said. « Trump has a direct line to the American people and there’s no question he’ll utilize the ruling to tell regular folks that his ban isn’t discriminatory. »

The judge found the challengers weren’t likely to win when their case is argued in court.

‘Nation’s Security’

“As the court correctly notes in its opinion, the president’s order falls well within his legal authority to protect the nation’s security,” White House spokesman Michael Short said in a statement. “We are confident the president’s fully lawful and necessary action ultimately will be allowed to move forward.”

Trump’s Words May Haunt Him as Travel Ban Appeal Promised

The Virginia case was brought by Linda Sarsour, a well-known Muslim activist from Brooklyn, New York, and national co-chair of the Women’s March on Washington that took place the day after Trump’s inauguration. The suit was the first that sought to use Trump’s recent public remarks against him in court, in addition to his comments about Muslims during the campaign.

The Justice Department cited the ruling Friday in a filing in Honolulu federal court, where a judge is set next week to consider whether his temporary ban should be made more permanent. The government claims Judge Trenga’s decision is evidence that the revised order succeeded in eliminating implications of religious discrimination.

Next Step

The government asked U.S. District Judge Derrick Watson to reject a preliminary injunction, the next step in Hawaii Attorney General Douglas Chin’s call for permanently blocking the executive order. If the judge issues an injunction, the Justice Department asked that it be limited to the section of the 15-page travel ban that prohibits new visa applicants from the six Muslim-majority countries. That would leave allow enforcement of a 120-day suspension of new applications for refugees.

Hawaii’s attorneys and opponents of the travel ban in other lawsuits argue Trump’s discriminatory intent was clear in his presidential campaign.

Gadeir Abbas, an attorney for the plaintiffs in Virginia, pointed to Trump’s remarks at a March 15 rally in Nashville, Tennessee, saying they showed the president’s real motive is a bias against Islam. That would violate the Constitution’s Establishment Clause, which prohibits any government preference for one religion over another.

He said “three times in 10 minutes, in front of thousands of people and with television cameras pointed in his face, that the new executive order is a watered-down version of the first, » which courts had said unfairly targeted Muslims, Abbas said.

Past Comments

A San Francisco appeals court, in reviewing Trump’s initial travel ban, said courts could consider the motivation behind the order. Judge Watson in Honolulu accepted the invitation and in blocking the enforcement of the travel ban found that a reasonable person would conclude that the revised order was issued with “a purpose to disfavor a particular religion.”

Trenga, the Virginia judge, disagreed.

Changes made from the first executive order to the second were substantial enough that the president’s past remarks don’t carry as much weight, Trenga said.

Suggesting otherwise would require “a psychoanalysis of the drafter’s heart of hearts,” the judge said.

Trump replaced his first order by dropping Iraq from a list of seven countries whose citizens are barred from entering the U.S. for 90 days. The revised order halted admissions of refugees for 120 days, but it no longer banned Syrian refugees indefinitely and didn’t favor Christians. Permanent legal residents, also known as green card holders, and travelers with a valid visa were exempt under the new order.

The bitter fight over the travel bans has become an early test of whether the president will be able to deliver on his campaign promises. Other than an early win in Boston, the administration has lost in courts across the country as technology companies, universities, civil-rights advocates and states including Washington, Hawaii and Minnesota challenged the directive.

Legal Issues in the Trump Travel Ban Fight: QuickTake Scorecard

The losses forced Trump to revise his initial executive order, signed one week after he was sworn in, though the new version — which he called “watered down” — has also been blocked by courts.

A Maryland judge put the 90-day ban on visas for people from the six nations on hold, reinforcing a broader ruling out of Hawaii which additionally blocked a longer ban regarding refugees. The decisions stopped the second order from ever taking effect.

Trump slammed the rulings, saying that they “make us look weak” and that the travel restrictions are needed to protect Americans from “radical Islamic terrorists.” The Justice Department said Trump has broad legal authority to regulate immigration.

Government Appeal

The government is appealing the Maryland judge’s ruling.

« We disagree with the result reached by the court” in Virginia, said Lee Gelernt, an American Civil Liberties Union lawyer who wasn’t involved in the case. “The issue is now before the Fourth Circuit, » he said in reference to the appeals court in Richmond, Virginia.

« It does not surprise me that a judge would defer to the president in such matters, » said Stephen Wasby, a legal scholar at the State University of New York in Albany who isn’t involved in the case and is critical of the travel ban. « This is immigration and foreign affairs, an area in which judges are more deferential to the executive. »

The Fourth Circuit may combine the Virginia case with the Maryland case as part of the appeal process, he said.

The Virginia case is Sarsour v. Trump, 17-cv-00120, U.S. District Court, Eastern District of Virginia (Alexandria).

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Former Penn State president Graham Spanier was convicted Friday of one count of child endangerment over his handling of a child sex abuse complaint against retired assistant football coach Jerry Sandusky.

Jurors found Spanier not guilty of conspiracy and a second count of child endangerment.

According to multiple reports, first-time offenders such as Spanier face anywhere from probation to a maximum sentence of five years.

He is free on bail until sentencing later this spring. Prosecutors declined to say whether they would seek jail time, and Spanier’s lawyer said he would appeal.

Spanier, 68, showed no emotion when the verdict was read after 13 hours of deliberations.

The trial centered on how Spanier and two other university leaders handled a complaint by a graduate assistant who said he saw Sandusky sexually molesting a boy in a team shower in 2001. The school officials told Sandusky he could not bring children onto the campus anymore, but did not report the matter to police or child welfare authorities.

Sandusky was the football team’s defensive coordinator for more than 20 years and retired after the 1999 season. He was not arrested until 2011, after an anonymous tip led prosecutors to investigate the shower incident. He was convicted the next year of sexually abusing 10 boys and is serving a decades-long prison sentence.

Four of the eight young men testifying at Sandusky’s trial said the abuse occurred after 2001.

« Evil in the form of Jerry Sandusky was allowed to run wild, » Deputy Attorney General Patrick Schulte told the jury.

The scandal sent shockwaves through the Penn State community. It led to the firing of Hall of Fame coach Joe Paterno — who died of cancer at 85 in early 2012 — and resulted in the school paying out more than $90 million to settle civil claims by more than 30 accusers. Paterno was never charged with a crime.

Former athletic director Tim Curley and former vice president Gary Schultz pleaded guilty to misdemeanor child endangerment charges a week ago and testified against Spanier. But all three denied they were told the encounter in the shower was sexual in nature.

A key piece of evidence was an email exchange in which the three debated what to do after getting the report from graduate assistant Mike McQueary.

Spanier approved having Curley tell Sandusky to stop bringing children to athletic facilities and to inform The Second Mile, a charity for at-risk youth founded by Sandusky.

The evidence also showed they had planned to inform the state Department of Public Welfare. Instead, Spanier approved putting that on hold, and the agency was never contacted. That failure to make a report formed the heart of the criminal accusations against him.

« The only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it, » Spanier told Curley and Schultz in 2001 in the email exchange. He called the plan « humane and a reasonable way to proceed. »

Spanier’s attorney, Sam Silver, said the case involved judgment calls by high-ranking university administrators in dealing with the complaint that Sandusky had been seen naked with the boy in a team locker room.

State prosecutor Laura Ditka said the three university leaders wanted to protect Penn State’s reputation at the expense of children.

« They took a gamble, » she told the jurors. « They weren’t playing with dice. They were playing with kids. »

A report commissioned by the university and conducted by former FBI Director Louis Freeh concluded that Paterno and the three others kept the allegations against Sandusky quiet, for fear of bad publicity.

Schultz and Curley testified they never told Spanier that the incident reported in the shower was sexual.

« Mr. Schultz made clear — he, Gary Schultz, told Graham Spanier that it was horseplay, » Silver said.

McQueary contradicted them, testifying he did say it was sexual.

McQueary said he told the athletic director and vice president that he saw Sandusky behind a prepubescent boy, in a dark shower at night, with his hips moving slightly.

« Do you think that’s horseplay? » Ditka asked jurors.

After the conviction, Ditka said the jurors « kept the focus successfully on children, » adding that Spanier « was convicted for all the children who came to Penn State after what Mike McQueary saw that night. »

The Associated Press contributed to this report.

House Republican leaders abruptly pull their rewrite of the nation’s health-care law]

“As you know, I’ve been saying for years that the best thing is to let Obamacare explode and then go make a deal with the Democrats and have one unified deal. And they will come to us; we won’t have to come to them,” he said. “After Obamacare explodes.”

“The beauty,” Trump continued, “is that they own Obamacare. So when it explodes, they come to us, and we make one beautiful deal for the people.”

My question for the president: Are you really willing to wait to reengage on health care until the Democrats come and ask for your help?

View Graphic Which Republicans forced Trump to pull the health-care bill

“Sure,” Trump said. “I never said I was going to repeal and replace in the first 61 days” — contradicting his own statements and that of his own adviser, Kellyanne Conway, who told CNN in November that the then-president-elect was contemplating convening a special session on Inauguration Day to begin the process of repealing the Affordable Care Act.

Turning to an aide, Trump asked, “How many days is it now? Whatever.” He laughed.

Trump returned to the theme of blaming the Democrats.

“Hey, we could have done this,” he said. “But we couldn’t get one Democrat vote, not one. So that means they own Obamacare and when that explodes, they will come to us wanting to save whatever is left, and we’ll make a real deal.”

There was little evidence that either Trump or House Republicans made a serious effort to reach out to Democrats.

Still, I wondered, why not whip some more votes this weekend and come back next week to the House with a revised piece of legislation?

“Well,” Trump said, “we could do that, too. But we didn’t do that. It’s always possible, but we pulled it.”

Trump brought up the vote count. “We were close,” he said.

How close?

“I would say within anywhere from five to 12 votes,” Trump said — although widespread reports indicated that at least three dozen Republicans opposed the measure.

[There were at least three dozen Republicans opposed to the health-care bill

That must have hurt after all of his efforts, I said. He made calls, had people over to the White House, invited House members on Air Force One. He may not have loved the bill, but he embraced the push for passage.

“You’re right,” Trump said. “I’m a team player, but I’ve also said the best thing politically is to let Obamacare explode.”

Trump said he made the decision to pull the bill after meeting Friday at the White House with House Speaker Paul D. Ryan (R-Wis.).

Was that a tense, tough conversation with Ryan, I asked?

“No, not tough,” Trump said. “It’s just life. We had great support among most Republicans but no Democratic votes. Zero. Not one.”

I mentioned to Trump that some of his allies were frustrated with Ryan. Did he share those frustrations, and would he be able to work with Ryan moving forward on plans to cut taxes and build an infrastructure package?

“I don’t blame Paul,” Trump said.

He then repeated the phrase: “I don’t blame Paul. He worked very hard on this.”

And again.

“I don’t blame Paul at all.”

As he waits for Democrats, I asked, what’s next on health care, if anything, policy-wise?

“Time will tell. Obamacare is in for some rough days. You understand that. It’s in for some rough, rough days,” Trump said.

“I’ll fix it as it explodes,” he said. “They’re going to come to ask for help. They’re going to have to. Here’s the good news: Health care is now totally the property of the Democrats.”

Speaking of premium increases, he continued: “When people get a 200 percent increase next year or a 100 percent or 70 percent, that’s their fault.”

Trump returned again to a partisan line on the turn of events.

“To be honest, the biggest losers today are Nancy Pelosi and Chuck Schumer,” Trump said of the House minority leader and the Senate minority leader. “Because now they own the disaster known as Obamacare.”

Okay, I asked, they may own it, in his view, but he will at some point be tasked with shaping whatever comes forward as a partial replacement or fix. What will that be? What kind of policy could he support?

“Oh, lots of things can happen,” Trump said. “But the best would be if we could all get together and do a real health-care bill that would be good for the people, and that could very well happen.”

Does Trump regret starting his agenda this year with health care?

“No, I don’t,” he said. “But in a way I’m glad I got it out of the way.”

“Look, I’m a team player,” Trump said of the Republican Party. “I’ve played this team. I’ve played with the team. And they just fell a little bit short, and it’s very hard when you need almost 100 percent of the votes and we have no votes, zero, from the Democrats. It’s unheard of.”

What happened with the House Freedom Caucus, the hard-line conservatives he had wooed over and over again?

“Ah, that’s the big question,” Trump said with a slight chuckle. “Don’t know. I have a good relationship with them, but I couldn’t get them. They just wouldn’t do it.”

Trump alluded to long-running, simmering dramas on Capitol Hill, which he said had little to do with him, as a reason the Freedom Caucus could not back the bill.

“Years of hatred and distrust,” he said. “Long before me.”

Was Trump saying, perhaps, that the inability of Ryan and his team to work well with that caucus was part of why talks stalled?

“Well, look, you can say what you want,” Trump said. “But there are years of problems, great hatred and distrust, and, you know, I came into the middle of it.”

“I think they made a mistake, but that’s okay,” Trump said of the Freedom Caucus.

As we wrapped up, I tried to get some clarity. The president was blaming the Democrats and was willing to let the law “explode.” Yet he also seemed to be teasing the possibility of doing something bipartisan down the road, a fresh start of sorts.

I asked: Would working on a bipartisan health-care deal a year from now be something he would find more agreeable than whipping the hard right?

“A lot of people might say that,” Trump said, laughing. “We’ll end up with a better health-care plan. A great plan. And you wouldn’t need the Freedom Caucus.”

What about the moderates, the Tuesday Group?

“They were great,” Trump said. “They were really great.”

He turned once more to the Democrats.

“They own it,” he said.

“You’ve said that,” I told him.

“This is a process,” Trump concluded, “and it’s going to work out very well. I was a team player, and I had an obligation to go along with this.”

As Trump tried to hang up the phone and get back to work, I asked him to reflect, if at all possible, on lessons learned. He’s a few months into his presidency, and he had to pull a bill that he had invested time and energy into passing.

What was on his mind?

“Just another day,” Trump said, flatly. “Just another day in paradise, okay?”

He paused.

“Take care.”

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