A WOLF IN TRUMP'S CLOTHING

 

Candidate Donald Trump vowed to "clean up the swamp in Washington."

 

Part of that cleansing was to appoint Chad Wolf as Acting Secretary of Homeland Security. (He has never  been confirmed by the Senate for that position, but that's a Trumpian stunt, the legality of which is beyond me.)

 

Upon graduation from college, Wolf became a staffer for several Republican senators, then worked for the TSA, then left to become a lobbyist for contractors who wanted to sell stuff to the TSA, then emerged from the swamp to go back to the TSA, after which Trump appointed him as Chief of Staff to the Secretary of Homeland Security.

 

Trump, seeing a loyal soldier with the Trumpian values of dishonesty and cruelty, in November 2019, appointed Wolf to be Acting Secretary of DHS, where he didn't disappoint. In his brief tenure, he

 

i) Became an early architect of the Trumpian policy of separating immigrant children from their parents.

 

ii) Lied to Congress about his role in that program. Calls for his indictment were ignored by swampcreature William Barr.

 

iii) Sent untrained federal agents wearing unmarked camo uniforms into the streets of Portland Oregon, where they gassed, beat, and on some occasions illegally seized innocent protestors. His justification? The protestors were "violent anarchists."

 

iv) On February 5, 2020, entered an order excluding all New York residents from participating in Trusted Traveler and Global Entry programs.

 

v) In defending New York's court challenge of that order,  Wolf, (represented in court by the Civil Division of the SDNY US Attorneys Office) made submissions to the court (District Judge Jesse Furman) asserting that the ban was justified because New York's so-called sanctuary law was "unique, and precluded DHS from conducting adequate risk assessments of New York applicants for Trusted Traveler Programs."

 

What happened next was nothing short of extraordinary. On July 23, 2020, DHS announced it was rescinding its February ban, effective immediately.   Judge Furman promptly directed counsel to confer and advise him whether the rescission of the ban made the litigation moot.

 

(What a coincidence. My previous blog, I'm sure you will recall, was about the Supreme Court decision affirming a district court finding that Secretary of Commerce Wilbur Ross was an out-and-out liar. What I neglected to include in that post was the not-so-small detail that Chief Justice Roberts' opinion in that case was 100% based on a meticulously detailed, 60-page opinion by the very same Judge Jesse Furman.)

Okay, back to our story. Why did DHS fold and rescind the ban on New Yorkers? Could it have something to do with the letter the SDNY US Attorney sent to Judge Furman within an hour of his request for the parties' view of the mootness question?

 

In fifty years of  federal civil and criminal litigation, I have never seen the likes of this one. US Attorney Audrey Strauss informed the court that her client DHS wished to withdraw its defense of New York State's legal attack because "newly disclosed facts" revealed that the government's submissions, some sworn, "are inaccurate in some instances and give the wrong  impression in others."  Moreover, the new revelations were so material as to "undermine a central argument" of the defense and even "undermined the 'rationale' for DHS' original decision and for defendants' 'defense' of that decision."

 

This is lawyer-talk for, "Judge, my client lied to me, and to you. Plaintiff is correct: The DHS ban has no legal justification and was 100% a political attack. There is no defense to New York's claims in this litigation."

 

Holy cow!  This is beyond just plain political scandal; now we are talking about real fraud on the court and perjury.

 

But exactly who said what? That's what Judge Furman wants to know, and he has entered an order that the media have barely reported. It is of huge significance to Wolf, Trump, and their stooges.

 

Within the next two weeks, the government must submit to the court:

 

1. A list of "any and all" inaccurate or misleading statements.

 

2. An explanation, with respect to each statement, why it is inaccurate or misleading.

 

3. An identification of who made each statement

 

4. A summary of "what due diligence" the US Attorney's office made to determine whether each statement was accurate.

 

5. A statement of when and how the US Attorney learned of the false statements, including who reported the inaccuracies in the first instance.

 

6. A description of "who, when, and how" DHS discovered the submissions to the court were false or misleading.

 

And the icing on the cake,

 

7. With respect to false statements made under oath, the declarant must submit a new sworn statement:

 

a) describing how he came to include a false statement in his sworn declaration,

 

b) what steps, if any, he took, to confirm accuracy before he signed the sworn declaration, and

 

c) when and how he learned his statement was false.

 

Phew.  And this is not the end. Furman warns the DHS declarants they may be required to testify at a hearing.

 

Will the person or persons at DHS who filed false sworn statements take the Fifth?

 

Will someone really come clean and report who said what to whom in the DHS?  There can be little doubt The-Liar-in-Chief was involved in the DHS ban, and perhaps even in the litigated defense of it.  Will his name come up in the responses to Furman's questions?

 

Governor Cuomo has called the entire episode "criminal" and he wants counsel fees and costs. This wouldn't be the first time Trump agreed to sanctions including counsel fees for unmeritorious litigation. (See footnote 2, below.)

 

Will Furman grant New York's request for further discovery?

 

What will the big bad Wolf do now? In "Little Red Riding Hood," the bad guy was decapitated by an axe-bearing woodsman. Will Wolfie survive this one?

 

 

This is more exciting than HBO's Perry Mason!

A bientot!

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1, As  my regular readers know, there is no fixed schedule for these posts. If you want

 a notice of each new posting, just send me an email and I will add you to the notice list. 

 mlondon34@gmail.com

2. For the details of a litigation in which, on behalf of my client, I won counsel fees from Donald

Trump, see my memoir "The Client Decides," available on Kindle and at Amazon.