White House tweaks Trump's travel ban to exempt green card holders

President Donald Trump's administration is reinterpreting its travel ban for residents of certain countries to now exempt legal permanent residents of the United States.

White House Counsel Don McGahn issued "authoritative guidance" on Wednesday clarifying that key parts of Trump's controversial executive order, which is aimed at citizens of seven majority-Muslim countries, will no longer cover green card holders, White House press secretary Sean Spicer announced Wednesday afternoon.


"They no longer need a waiver because if they are a legal permanent resident they won't need it anymore," Spicer told reporters during a daily briefing.

The changes to the travel ban come after widespread controversy over the policy. The memo from the White House counsel appeared to be a face-saving way for the White House to redraft the executive order without incurring the embarrassment of actually having Trump sign a new executive order that eliminated the impact on green card holders.

Experts said the decision to effectively redraft an executive order via a memo from the White House counsel was highly unusual. Typically, the president personally approves any changes to such orders, which are sequentially numbered, published in the Federal Register and have the force of law in the executive branch.

"The usual thing is that the executive order gets modified in some way or amended, maybe," said Daniel Gitterman, author of "Calling the Shots: The President, Executive Orders, and Public Policy." "The additional caveat from White House legal counsel on how to interpret that is unusual. There's not a huge record of those types of things."

"My interpretation is [Trump] certainly did not want to admit he was wrong in any way and that, rather than go and vacate or amend the initial order, they decided to have counsel make a clarifying explanation," added Gitterman, a professor in public policy at the University of North Carolina.

Several former high-level federal government lawyers said they could not recall an attempted revision of an executive order by White House counsel in recent years. Sometimes agencies issue interpretive guidance.

Some White Houses have also called on the Justice Department's Office of Legal Counsel to provide legal opinions on executive orders. The Justice Department has said that OLC approved the order's "form and legality" before it was issued. However, the scope of that review is unclear.

"I think this is a clean-up effort," said Yale law professor Cristina Rodriguez, a former OLC lawyer under President Barack Obama. "In light of the poor process for development of the executive order, it's a good thing they did this. Hopefully, it will make its way down through the agencies."

More than 100 green-card holders were detained as they arrived at U.S. airports in the first day or so that Trump's order was in place. The detentions helped spark protests around the country. Lawmakers of both parties publicly criticized the order, particularly over its impact on longtime U.S. residents. Many on Capitol Hill said it was evidence that the directive had not been adequately vetted by career experts in the government.

Some judges also stepped into the fray, issuing orders blocking deportations or requiring release of travelers affected by Trump's orders.

McGahn's memo to the State, Homeland Security and Justice departments acknowledges that the wording of the order Trump signed Friday was ambiguous.

"I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals," McGahn wrote. "Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order."

McGahn did not say in the memo whether he discussed the issue with Trump or had his personal approval for the guidance.

Trump administration officials said this weekend that green-card holders delayed on Friday and Saturday were eventually given waivers to enter the U.S., but on Sunday night Secretary of Homeland Security John Kelly announced he was granting a categorical waiver that covered green-card holders. Now, the White House appears to saying the entire waiver process wasn't necessary.

"Initially, as the program was lifting off the idea was that they would go through and be granted a waiver of which everyone was issued a waiver coming in. ... That does not apply; they no longer need a waiver," Spicer said.

Asked about individuals with valid visas or green cards who were deported over the weekend, Spicer did not initially reply. He later seemed to acknowledge some such instances, which immigration advocates contend violated court orders.

Spicer said those with green cards would now be readily admitted to the country. "If they're not a legal permanent resident, then they have to go back and that's part of this vetting process. There's a big difference," Spicer said.