Attorneys representing Santa Clara County in California petitioned a federal judge late Thursday to enter a collection of statements made by members of the administration into the record in their case, saying that the administration's public statements directly contradict what Justice Department lawyers are arguing before the court.
It's the latest example of attorneys trying to use the public statements of the Trump administration against itself, a theme in court battles designed to try to block pieces of President Donald Trump's agenda.
Santa Clara County is the lead plaintiff in a case challenging a piece of Trump's January executive order on immigration that targeted sanctuary jurisdictions, a catch-all term generally used to describe states, cities and localities that do not fully cooperate with federal immigration enforcement.
The federal judge in the case in April blocked
the administration from enforcing part of the order -- a broad threat to take away federal funding from jurisdictions determined to be so-called sanctuaries.
The judge allowed a narrow interpretation of the threat to be enforced, hinging on a small piece of US law that requires localities to transmit immigration information about individuals to the federal government when asked. The judge said the government could withhold a small subset of federal grants related to law enforcement if cities didn't comply with that law -- a requirement already put in place as a precondition for those grants late in the Obama administration.
Despite months of statements that the administration would seek to potentially take away more grant monies for a broader range of perceived noncooperation from jurisdictions, the Justice Department in May released
guidance clarifying that the narrow range of actions allowed by the federal judge were the only punishment the government intended to pursue.
After that, the Justice Department asked the court to dismiss the case, based in part on the new guidance.
But attorneys for Santa Clara County are asking the court to not buy the government's argument, pointing to statements since the guidance that go far beyond what it says.
Attorneys are asking the judge to allow them to file an additional argument in the case, which compiles those statements.
Examples include testimony of Immigration and Customs Enforcement acting Director Thomas Homan before Congress in June, where he said the government expects "not only sharing the information, but (to) allow us access to the jails" -- the latter piece of which is not required by US law. The attorneys also note that Homeland Security Secretary John Kelly told Congress three days after the guidance memo: "With respect to 'the Sanctuary Cities thing,' he said: 'Frankly, I don't really know what it means. I don't think anyone out there knows what it means.'"
The attorneys argue that because of the administration officials' comments, the court can't simply rely on the guidance memo from the Justice Department -- accusing the administration of more than "moving the goalposts."
"Defendants' shifting positions, clarifications, and interpretations of the Executive Order make clear why the Court's injunction is necessary," the attorneys wrote. "Between counsel's representations, the AG memorandum, relevant congressional testimony, and the President's own statements, defendants aren't merely moving the goalposts in this litigation; they're switching sports entirely."
The legal argument echoes similar tactics used in ongoing litigation over the administration's travel ban, where attorneys challenging the controversial policy repeatedly cited statements from Trump himself and his surrogates on the campaign trail and afterward about blocking Muslims from entering the US.
The judge in the sanctuary cities case would still have to formally grant the attorneys' motion for the material to be entered into the court record. While the motion could be denied, the argument is likely to come into play either in further proceedings or at a scheduled hearing on the matter next week.
The court is set to hear arguments Wednesday afternoon in San Francisco. Attorney General Jeff Sessions, an aggressive critic of sanctuary cities, is slated to give remarks on the topic that morning in Las Vegas.