Those who say that of course Trump’s EO on immigration was meant to be a ban on Muslims are relying on Trump’s long-ago campaign statements as well as a more recent remark of his and some recent comments by advisor Rudy Giuliani. As an example of this type of reasoning, see this article by law professor Ilya Somin, quoting Brown University Professor Corey Brettschneider (writing here):
[A] closer look at the executive order’s origins makes clear that it is a direct assault on the fundamental constitutional values of equal protection and religious freedom. How do we know this? Because Trump’s adviser, former New York Mayor Rudy Giuliani, told us so.
Interviewed on Fox News on January 28 , Giuliani explained how the administration’s immigration policy morphed from one that was obviously unconstitutional to one that is more subtly so. Host Jeanine Pirro asked, “Does the ban have anything to do with religion?” In response, Giuliani said, “When [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.’” “It,” in this case, of course, is a ban on Muslims. Giuliani’s admission is a textbook case of drafting an order in a way that avoids overt declaration of animus against a religious or ethnic group, while retaining the motive and much of the effect.
“Of course” it means a ban on Muslims, says Brettschneider, who feels this is so self-evident as to not need argument or proof to defend his position. But of course there’s no “of course” about it. That’s because (similar to President Bill Clinton so famously said about another 2-letter word that starts with “i”) “It depends what the meaning of it is.”
Brettschneider is apparently a mind-reader, because the meaning of “it” in Giuliani’s sentence is not clear. Giuliani could have meant “banning Muslims,” just as Brettschneider thinks. Or he could have meant “protecting us from terrorists,” which after all was the stated goal of the EO and even of the original suggestion by Trump to ban Muslims.
But you know what? We don’t have to guess what Giuliani meant by the word “it” there—we can look to the record, because there’s a video of the Giuliani interview. Here it is:
Here is a direct quote from Giuliani during that interview:
We focused on, instead of religion: danger, the areas of the world that create danger for us. Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on. It’s not based on religion, it’s based on places where there are [sic] substantial evidence that people are sending terrorists into our country.
I don’t know how Giuliani could have been more clear. Giuliani explicitly says what “it” means: the goal of banning the entry of people from places where terrorists come from and will be coming from (places which, by the way, had already been identified by Obama as such). But Somin calls the EO a “case of discriminatory motives hiding behind a vener [sic] of neutrality…an attempt to target Muslims without saying so explicitly.”
Neither Somin nor Brettschneider feels the need to discuss anything else Giuliani said in that interview except that one sentence they say is a clear and obvious admission of a Muslim ban intent. They don’t give us the whole quote and try to explain it; they act as though the sentence stood alone and they can explain it any way they want to. And of course (there’s that “of course” again) they are free to say something like “the it to which Giuliani referred was a Muslim ban, and we negate everything else he said in his explanation because we think it was a lie,” but to pretend that’s anything but their opinion, and that their conclusion is supported by Giuliani’s own words in that Pirro interview is to use a truncated quote to prove something that is simply not provable.
Their argument, such as it is, rests on believing the worst of Trump (and Giuliani) without proof, claiming Giuliani is flat-out lying here—and not even giving their readers the benefit of the full quotes, so the readers can decide for themselves. They are certainly free to think that, but as a logical argument it leaves a great deal to be desired.
In terms of the actual court rulings, the 9th Circuit didn’t rule one way or the other on the basis of religious discrimination. However, there was a subsequent case in Maryland, in which the ruling of the judge was that Trump’s EO was religiously discriminatory:
[On February 13], Virginia federal district court Judge Leonie Brinkema issued a preliminary injunction against President Trump’s executive order on immigration, based on the fact that it discriminates against Muslims. Judge Brinkema’s opinion is especially notable because it is the first judicial ruling against the order based on the issue of religious discrimination.
The opinion relies on Trump’s own statements advocating a “Muslim ban,” and those of his adviser Rudy Giuliani as evidence of the discriminatory intent underlying the order.
So now we have a court relying on that Giuliani statement. Amazing.
Here’s the ruling. On page 6, the judge states that the government hasn’t provided any evidence about why the 7 countries were judged dangerous. I’m assuming the government argued in the same way it did before the 9th Circuit (which I’ve already discussed briefly in this post), the essence of which is that such information is not reviewable by the courts.
On pages 7-9 of the ruling we have a couple of Trump’s earlier statements, one of them going back to 2011, which is long before this campaign year—and that statement merely says there’s a “Muslim problem” and explicitly says that it’s not all Muslims and that “many Muslims” are fine. The court also offers a statement by Trump on January 17, 2017, in a Leslie Stahl interview: “Call it whatever you want, change territories [sic], but there are territories and terror states and terror nations that we’re not gonna allow the people to come into our country.”
Now, if anyone can take that inarticulate statement as clear evidence of some sort of intent at all, other than an indication that Trump is tired of all the nitpicking and questioning on the subject and is interested in preventing terrorists from coming into this country, then I submit that such a person is not being objective. In Trump’s heart of hearts he may hate Muslims, and religious animus may in fact be his motive for all of this. But I just don’t see it there, nor do I see an attempt to cover up that religious motive. All of it certainly should be considered highly insufficient as evidence. What’s more, Trump has made a great many statements (as did Pence and Giuliani), and many of them focus on terrorism. Must they all be ignored by the court as lies, and a few others cherry-picked and interpreted as negatively as possible to deduce evil anti-Muslim intent?
On page 9 of the record the court also offers Giuliani’s full statement in the Pirro interview (the video I posted above). Despite this, at the end of page 18 to the beginning of page 19 Judge Brinkema explicitly interprets the “it” (in that sentence of Giuliani’s I’ve already discussed) as meaning a Muslim ban. She explicitly rejects what Giuliani actually said in the rest of his statement, picking and choosing at will and interpreting an ambiguous word (“it”) to mean exactly what Giuliani said it didn’t mean.
Then Brinkema does something very similar with Trump’s “call it anything you want, we’ll call it territories, okay?” But it seems to me that in that interview Trump is indicating—at the point the interview was given, on January 17, 2017– that they—the media—are the ones still “calling it” a Muslim ban. Trump is saying that what he intends to do is to ban people from certain territories or terror states in order to prevent terrorists from coming here. Furthermore, Trump is not a lawyer and he is famous for the imprecision of his words, and this is certainly a very imprecise and unclear statement (unfortunately, I’ve been unable to locate a transcript or video of this Stahl interview to get the fuller context, which could help).
At the end of page 19 Judge Brinkema mentions again “the dearth of evidence indicating a national security purpose,” But let me repeat that that dearth is not because there is no such evidence to be had, it’s because the DOJ is arguing in these cases that such evidence is not going to be introduced because the court’s demand for it is an improper usurpation of a power that rightly belongs to the executive branch and is not subject to judicial review.
It bears repeating that I’m not any sort of kneejerk Trump advocate. I criticized the EO initially for some of its omissions, in particular the lack of differentiation for green card holders. I most definitely criticized Trump’s “Muslim ban” statements during the campaign as overbroad, and I suggested a country-by-country ban or an ideological ban instead. But that doesn’t mean that I am free to interpret every ambiguous statement Trump has made since to mean that he’s just covering up some special lingering animus he has for Muslims. I think his true interest is in preventing terrorists from coming to this country. But what I really think is that the courts are using “evidence” of prior statements that are ambiguous at best, and that the EO should stand and fall on its own merits. The EO does exactly what it says it does, and the court should not be guessing at whether there is some sort of Trumpian thoughtcrime behind it.
Why am I going into all of this now? Well, Trump has recently said he will be issuing a new EO on the subject soon, an EO in which he will be abiding by the rules the 9th Circuit has set up. He’s got a team of lawyers drafting it. But what’s to stop a liberal or leftist judge from once again considering these prior statements of Trump’s about Muslim bans and territories and the Giuliani statement as well, and saying that—no matter how they draft that new EO—their evil old anti-Muslim thoughtcrime intent is what’s really behind it?
[NOTE: This post doesn’t even take into consideration some of the other important questions, such as the fact that the EO didn’t ban the vast majority of Muslims, and whether constitutional protections about religion even apply to prospective immigrants or visitors to this country who presently reside in other countries. I think there are are persuasive indications that the EO was constitutional in regard to these constitutional questions, but if I had tackled those things in this post it would have turned into even more of a tome than it already is.]