Last Thursday, two months after he rocketed to international notoriety for his office’s success in blocking President Donald Trump’s travel ban, Washington Attorney General Bob Ferguson spoke to islanders about the experience.
He gave his talk at the Vashon Rotary’s weekly meeting as part of his goal to visit all 160 Rotary clubs in the state, a goal he admitted was an unusually large scale for an outreach mission. He noted that Vashon marks “the 85th or 86th” club he has spoken to, but was the first held in a church. In anticipation of a large crowd, the meeting was moved from its usual location at the Vashon Senior Center to the United Methodist Church. More than 100 people attended and many showed their appreciation for Ferguson’s work against the travel ban by thanking him after the speech. Some shook his hand and said thank you, while others gave him “thank you” notes or gifts. One woman gave him a carton of fresh eggs. But he said that during his Rotary tour he has seen varied reactions.
“I was at the Sunnyside Rotary (in Yakima County) recently and they weren’t as enthusiastic. There wasn’t a standing ovation at the Sunnyside Rotary,” he said referencing the warm welcome he received on Vashon. “Sunnyside’s at the opposite end, that’s a deep, deep red community.”
He said his speeches have been similar at every meeting, with him discussing the role of the Attorney General’s Office before opening the floor to questions, but Thursday’s speech, he admitted, was different because of the island’s demographics and interests.
“I may change the topic a bit,” he said at the beginning of his talk. “Usually I’ll chat about a variety of issues going on in the office. I thought I would focus a bit more on the travel ban, which I suspect might be of particular interest for folks.”
He told the now well-known story of how, in late January, at the end of the day on a Friday, Trump signed an executive order that essentially barred people from seven Muslim-majority countries from entering the United States. That action spurred a swift response from his office in the form of a lawsuit filed the following Monday that resulted in an injunction — a temporary restraining order. Other states have since joined the suit, including Hawaii and Maryland, where judges have lengthened the injunction until their own state’s cases against the ban are resolved.
Ferguson explained the difficulty of the case and said the injunctions that have been granted are tough to get because they seek action before the legal process is even complete.
“(That’s) very difficult to get from a court because what you’re asking the court to do is, ‘Hey, judge, before you have time to go through discovery and look at lots of documents and have motions, we’re asking you to stop what’s going on until you can decide … whether that law is legal or not,’” Ferguson said. “Well that’s a pretty big ask, right?”
The injunction was granted by James Robart, a U.S. District Court judge for the Western District of Washington, who was appointed by President George W. Bush in 2003. The government appealed, and Ferguson’s office repeated the process in the Ninth District Court of Appeals. It was here that Ferguson said he heard what he believes was one of the most important arguments of the case.
“There’s a lot to be said about the argument that the federal government … that’s your government, what they argued in court. They argued before Judge Robart and the Ninth District Court of Appeals … that the president’s authority is unreviewable. That’s their word. Don’t get me started, right?,” Ferguson said, as the audience laughed in shock. “That is not the law, will never be the law and you know, frankly, I wouldn’t allow to be the law. The president’s authority is not unlimited. Is it broad? Is there a lot of discretion? Absolutely. But it’s not unreviewable. That was one part of the litigation I thought was especially important.”
The appeals court upheld the district court’s ruling, and it was the ensuing press conference on the steps of the courthouse in downtown Seattle that thrust Ferguson and his office into fame.
“I was heading back to the office (from that press conference) and had a whole bunch of messages, one from my mother,” Ferguson recalled. “My mom is a very youthful 88-year-old, about to turn 89, (and) she is as sharp as a tack. So I picked it up and she said, ‘Bobby … I just got a phone call from Anderson Cooper’s team at CNN, they want to talk to you.’ I’m not sure if they thought I lived with my mom or what. They got creative and tracked down my mother.”
In a brief interview with The Beachcomber after his speech, when asked if he had ever before dealt with a case of this scale and the media coverage surrounding it, Ferguson said there is nothing even close.
“Nothing even 2 percent of this scale. And, you know, I’m used to being in the media a lot and that’s part of the job, but no, it’s borderline overwhelming at times,” he said. “I think it’s important to communicate to the public and my state and around the country why we’re bringing the lawsuit, and answer questions: why it’s not political, this is our argument, here’s why the president’s statements can be used. Because those are important questions. I think it’s important to communicate why we’re doing it.”
Ferguson’s speech stressed the importance of independence from political affiliations in his office’s work.
“It’s a big job and we have important responsibilities, and … the thing I always emphasize … is the importance of independence. Independence in the work that we do,” he said. “That’s what I most expect from myself and from everyone in my office. It does not matter what my political party is; what matters is our job is to defend and enforce the law, whether I personally agree with the law or not.”
He said that the office — which he described as “the largest law firm in the state of Washington” representing state entities and the people of Washington — is unique in that the leadership does not turn over every time a new attorney general is elected, regardless of political party.
“There’s been a long tradition of independence in the AG’s office,” he said. “When I became attorney general, I followed Rob McKenna. He and I are from different political parties. Each AG of course has their key deputies who oversee the whole operation. I asked those five or six deputies to stay on board for me who worked for Rob. I never asked them what their political party affiliation is, I still haven’t, I don’t particularly care. What I knew was those folks knew how to run a professional, non-partisan, independent law firm.”
He said he later found out that McKenna did the same and left his predecessor’s — Christine Gregoire — deputies in place, even though he and Gregoire were of different political parties.
“The leadership, the very top advisors to the AG literally don’t change from one administration to the next regardless of political party, and so I’m very proud of that,” Ferguson said.
Further explaining the office’s necessity to be free from political bias, Ferguson mentioned his filing of two lawsuits against the Obama administration over cleanup at the Hanford nuclear site. The Attorney General’s Office won one case, the other — which deals with employees and illnesses due to exposure to the leaking radiation — is still underway.
Going back to his decision to file the lawsuit against the current president, he said he is always aware of potential repercussions, but does not believe that question of what can happen is the most important.
“A lot of people ask me, ‘Man that must have been a big decision to decide to sue the president,’ and I don’t want to minimize it, but of course we understood what the stakes were. Washingtonians are being harmed, we have good arguments, we think we have standing, why would I not bring the lawsuit?” he said, explaining that the only reason not to bring the suit would be fear of losing or fear of retaliation. “When making a decision, focus on the questions that matter, but only focus on those. There will be a lot of other interesting questions … but are they really relevant to a decision?”
It’s all about calculated risks, he said, speaking about his time as a chess player to a room full of Vashon High School students after his Rotary speech.
“There was a calculated risk. I had to make a decision. There was a lot of uncertainty at the outcome when we filed the lawsuit,” he said.
The necessity to think about the future when playing chess was formative for how he thinks about the world and his job, he explained.
“A long, long time ago, when I was a senior (in high school) … I was upsetting my parents because I was not going to college and I was going go to Europe and become a professional chess player,” he said. “You have to imagine a position in the future. You decide whether or not that position is good for you or bad for you and then, based on that, you make your decision of what move to make.”
He went on to explain how sometimes those positions in the future get too complicated for even some of the world’s best chess players and there comes a point where a decision has to made, regardless of whether the exact outcome is known.
“I discovered there are two types of chess players, chess players who will go into those types of positions, and those who will not. I had many weaknesses as a chess player, but that was not one of them. I felt if my best chance to win was to make a move that led me into a totally complicated position where I could lose as easy as I could win … I did it. I knew in making the decision (to file the suit against Trump) that it could end very badly … but I knew if I did nothing, my position was bad. Washingtonians were being harmed and that would continue.”
He expects that the legal case is the first of many that will occur in coming years.
“There has been a significant rise in lawsuits filed by AGs against the president,” he said, reporting that more than 100 suits were filed against Obama by attorney generals from across the nation. A January 2017 article in the Texas Tribune indicates the state of Texas alone sued the Obama administration 48 times. “There was a significant rise in lawsuits during the Obama administration, that’s indisputable. It wouldn’t surprise me if there was a similar response to this