“I’ll use every tool that I have as attorney general to make sure that the president follows that Constitution," Attorney General Bob Ferguson said when asked if he would personally subpoena President Donald Trump. | Getty Why it might be harder than Trump thinks to defend the travel ban in court

In the days since a federal appeals court refused to revive President Donald Trump’s travel ban executive order, the president and his aides have dismissed the ruling as a loss they’ll easily reverse when they get in front of the Seattle judge who halted the policy rollout in the first place.

“We are fully confident we’ll prevail on the merits,” White House counselor Kellyanne Conway declared Monday on MSNBC.


But the next step for the administration in defending its policy is likely to be hard-fought litigation in the district court, inevitably leading to demands for access to confidential White House files as well as sworn testimony from top Trump advisers and, perhaps, even the president himself.

“It’s not clear to me that they really want this to be ‘on the merits.’ With the merits, comes discovery and discovery for the plaintiffs means the opportunity to look into the motivations of the senior officials involved,” said University of Texas at Austin law professor Steve Vladeck.

One of the lead lawyers on the Seattle case, Washington state Attorney General Bob Ferguson, has made clear he plans to wade into the issue of who on Trump’s team advocated for the order and why.

“We can seek depositions from administration officials. We can ask for documents and emails to get behind what truly motivated that executive order,” Ferguson said Sunday on ABC’s “This Week.”

Asked if he planned to subpoena Trump personally, Ferguson demurred. “I won’t announce that on national TV,” he said. “I’ll use every tool that I have as attorney general to make sure that the president follows that Constitution.”

He’s not alone. On Monday, lawyers for two immigrant advocacy groups asked a federal judge in Greenbelt, Md., to allow “expedited discovery” to records explaining why Trump issued the controversial directive and how agencies were told to carry it out.

The International Refugee Assistance Project and the Jewish refugee charity HIAS are seeking “guidance, memoranda, policies, or similar documents regarding the need for the Executive Order,” as well as “instructions and guidance issued to relevant agencies regarding the implementation and interpretation of the Executive Order and subsequent relevant court orders,” a letter filed with the court shows.

Justice Department lawyers responding to cases around the country have already taken steps to discourage judges from proceeding to full-blowin trials.

During a hearing on the Virginia case last week, a Justice Department attorney argued to Brinkema that a trial about the intentions behind Trump’s order would be a bizarre and unseemly spectacle.

“I don’t even understand how such a trial would work,” DOJ lawyer Erez Reuveni said. “Don’t let me speak for the Court, but I don’t think you want to go there.”

Calls for testimony from top White House officials or for records relating to presidential decisions often lead to protracted litigation over assertions of executive privilege, which would shield the president and his staff from having to obey the normal demands of the court.

“You don’t get to do any discovery. That’s how it works,” said David Rivkin, a former White House Counsel’s Office attorney under President George H.W. Bush. “There’s supposed to be a black box.”

Trump and his aides have indicated they are also considering issuing a new order limiting travel and immigration into the U.S. to replace the one Trump signed Jan. 27. That document suspended entry for all refugees and for visa-holders from seven majority-Muslim countries.

Private parties and states suing over that order say they plan to keep pursuing litigation even if the administration files a new order. The suits could be modified to focus on the new order and they could continue over the old one if judges are persuaded there’s a reasonable chance it could be reinstated.

Because questions have been raised in court about whether Trump’s original order unfairly singled out Muslim travelers and visa-holders—in violation of the Establishment Clause of the Constitution—litigants could claim that any subsequent order the White House issues limiting travel and immigration because of terrorism concerns is tainted by anti-Muslim bias.

A federal judge in Virginia issued an injunction against part of Trump’s order Monday evening after she concluded that it appeared to violate the Establishment Clause.

“The 'Muslim ban' was a centerpiece of the president's campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered," U.S. District Court Judge Leonie Brinkema wrote in her ruling on a case filed by the state of Virginia.

Brinkema was clear, however, that her ruling was limited only to the order already signed: “The Court’s conclusion rests on the high particular ‘sequence of events’ leading to this specific EO and the dearth of evidence indicating a national security purpose.”

Virginia Attorney General Mark Herring, who brought the suit, hailed the judge’s ruling for focusing on the order as a violation of religious freedom.

“Here in the Virginia case, the judge really went to the heart of the establishment clause case,” Herring told reporters in a conference call Monday night.

Herring said it was “too early” to talk about what evidence the state will seek or what will happen if Trump issues a new order.

“We’re going to proceed to trial and we’ll see what the administration does next,” Herring said.

While the White House considers its options for proceeding with its order, new lawsuits are still being filed. Last week, lawyers for an unnamed Syrian asylum recipient who now lives in Wisconsin filed a new lawsuit in federal court demanding that his wife and three-year-old daughter be permitted to travel from Aleppo, Syria to the U.S. to join him.

