Justice Department attorney Michelle Bennett learned firsthand Monday what it feels like to have a tweet written by the President of the United States used against her in federal court.
Bennett was asking district court Judge James Robart to temporarily postpone proceedings concerning the President Donald Trump’s executive order on immigration while a federal appeals court was still considering the issue.
In response, Robart brought up Trump’s tweet sent after the appeals court ruled against the White House last week. “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Trump tweeted in all caps.
“Counsel, I’m a little surprised,” Robart told Bennett as she made her request for postponement, “since the President said he wanted to ‘see you in Court’….Are you confident that’s the argument you want to make?”
“Yes, your honor” Bennett said. Robart ultimately ruled against her.
To be sure, Robart’s comment was lighthearted, but it reflects the facts that judges are not immune to a series of tweets the President has launched about the case, often criticizing the judiciary and particular judges. Courts are also looking at other statements Trump has made that could directly impact the defense of his travel ban. Indeed, less than four weeks into his administration Trump’s outbursts might serve not only to complicate the arguments made by government lawyers but also jeopardize the future of his executive order on immigration.
A key part of the argument against the travel ban, for instance, is that it discriminates on the basis of religion. It is something the government lawyers have flatly rejected, but the courts — so far — are taking seriously.
“To be clear, this is not a Muslim ban, as the media is falsely reporting,” Trump wrote in a statement last month. “This is not about religion—this is about terror and keeping our country safe,” he said.
But in almost every brief filed, the challengers have carefully detailed the comments Trump made during the campaign and afterwards that they argue prove that there was an intent to discriminate.
And the argument seems to be resonating with some judges — although the challenge is still at a preliminary stage.
Trump’s executive order bars citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.
During one hearing when Washington State Solicitor General Noah Purcell was asked about whether the ban inferred “religious animus,” Purcell pounced.
“The case law from this court and the Supreme Court is very clear that to prove religious discrimination, we do not need to prove that this order harms only Muslims, or that it harms every Muslim. We just need to prove that it was motivated in part by a desire to harm Muslims,” he said.
He went on to tell the court that although the states haven’t had any discovery, they have come across “rather shocking evidence of intent to discriminate” including public statements from the President.
Purcell outlined examples in court briefs of Trump’s statements including one he made when he was a candidate on December 7, 2015 when he issued a press release calling for a ‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
When the 9th Circuit panel eventually ruled in favor of Purcell, it did so on due process grounds but the judges mentioned the religious claims and wrote: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
“There is no question that President Trump’s order is not an explicit ban on all Muslims,” said Kari E. Hong a professor at Boston College Law School who has signed a brief in support of the states challenging the ban: Washington and Minnesota.
“But the courts have long recognized that government officials with prejudice often are savvy enough to hide their intent behind words that seem neutral,” she said. “That is why statements that President Trump and his top advisors made in public, to one another, and even in tweets, will be central to determining what in fact was the purpose of the ban.”
In a different case on Monday night, Judge Leonie Brinkema, of the US District Court for the Eastern District of Virginia noted that the Commonwealth has produced “unrebutted evidence” supporting its position that it is likely to succeed on its claim that the ban was a violation of the Establishment Clause.
“The ‘Muslim ban’ was a center piece 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,” she wrote.
In a new lawsuit filed in Maryland the National Immigration Law Center argues that the executive order was “intended and designed to target and discriminate against Muslims.” The lawyers maintain “rarely in American history has governmental intent to discriminate against a particular faith and its adherents been so plain.”
They point to a July 2016 interview on NBC’s Meet the Press. “Candidate Trump was asked if a plan similar to the now-enacted Executive Order was a ‘roll back’ from the ‘Muslim ban,” the lawyers wrote.
“Candidate Trump responded: ‘I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories,'” they wrote.
“Candidate Trump continued, ‘People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.'”
They also provided comments that former New York Mayor Rudolph Giuliani, a Trump supporter, made on Fox News last month. “When [candidate Trump] first announced it, he said, ‘Muslim ban.” He called me up. He said, “put a commission together. Show me the right way to do it legally.”
Not all judges reference Trump’s statements, however, US District Court Judge Nathaniel M. Gorton, of the U.S. District Court for the District of Massachusetts, ruled in favor of Trump and declined to extend a temporary restraining order. Of the Establishment Clause claims he said simply, that at least in one section of the Executive Order is “neutral with respect to religion.”
And Michael McConnell, director of the Constitutional Law Center at Stanford Law School, believes “it is highly questionable that courts can or will consider evidence of any kind about the motivations behind the President’s actions.” He cites federal law that provides that the President can ‘suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants’ and said, “that does not empower courts to second-guess his reasons.”
McConnell also argues that “A candidate is not the government. Candidate Trump advocated a Muslim ban, but the executive order is not a Muslim Ban. Is the government of the United States precluded from taking what would otherwise be legitimate steps to screen out applicants from nations where it is difficult to vet their applications, because a candidate said something outrageous on the campaign trail?”