February 18th, 2017

The courts rule on Trump’s intent and the “Muslim ban”

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 [2017], 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.]

15 Responses to “The courts rule on Trump’s intent and the “Muslim ban””

  1. Griffin Says:

    This is so bizarre. What if another advisor said something totally contradicting another advisor. Do judges get to decide now which one is telling the truth and use that to craft rulings? What if a candidate says two different things during the course of a campaign? It happens all the time as they talk to different constituencies with differing agendas. Do judges get to decide which statement he really meant and use that to craft rulings?

    Here’s a wacky idea how about they rule based on the text in question and it’s constitutionality and leave the mind reading out of it.

  2. neo-neocon Says:

    Griffin:

    I’ve never seen rulings like this.

    I’ve never seen campaign statements being admissible (although it’s not like I know everything about case law on the subject). But I do see them as picking and choosing a couple from a huge number, and ignoring the others. I would imagine that the ones they mention were statements the plaintiffs introduced in evidence, and that the government was unprepared with other statements that contradicted them, but I don’t know what the government defense was. Were they blindsided and/or unprepared? Did they offer other statements that the court ignored? Was there any argument at all? I don’t know, but I’d like to know. It sets a terrible precedent.

  3. Griffin Says:

    Neo:

    Another fair criticism of this EO was issuing it before he had his AG confirmed so as to assure it would get defended properly. Maybe this was naivety in believing that the Justice Dept attorneys would do their jobs regardless of their personal beliefs.

    Should be a big time lesson learned here. They need to be very aggressive in jettisoning all Obama appointees in all departments as fast as possible even if they don’t have a ready replacement.

  4. Geoffrey Britain Says:

    These activist judges could care less about the facts, constitutional law or reasoned arguments. You might as well try to ‘reason’ a malignancy out of a body.

    They only care about the furtherance of the ideological agenda they embrace and they will continue to use their office toward that goal. They will not stop until sufficient consequence forces them to do so.

    It’s not just leftist lawyers and organizations that practice “lawfare”, activist judges enable it. They give lip service to the Constitution while working to undermine it.

  5. neo-neocon Says:

    Griffin:

    Yes, that was another complaint of mine. I thought Sessions should have been in place. There was no real reason I could see to rush the EO to such an extent, and the haste backfired.

  6. expat Says:

    How did these judges make it through law school?

  7. Yancey Ward Says:

    I wrote once before that it literally would not have mattered how carefully the EO were constructed and issued, and it would not have mattered what anyone who supported Trump said publicly, however tangentially related to the issue at hand. Whatever EO Trump issued on this would have reached the same judges in the same time period, and would have been decided in the same way. I think at this point, even trying to point out the problems with the legal opinions is almost a waste of time.

  8. parker Says:

    The shenanigans going on now in the courts is a lesson in why it is of the utter most importance that Consitutional judges are a majority of SCOTUS and the appellant courts. My limited research on this issue tells me the courts have very BIGLY limited authority to determine squat when it comes to who or who may not enter the USA.

  9. Brian Swisher Says:

    WRT the haste with which the EO was issued, I have wondered if Trump and his advisors saw something when they gained access to classified info that they thought required immediate action.

  10. OM Says:

    Slightly off topic, but good news non the less:

    “Sheikh Omar Abdel-Rahman, the blind firebrand Islamist cleric behind the World Trade Center bombing in 1993, has died in federal prison, Fox News has learned. He was 78.”

    One that BHO couldn’t or didn’t pardon and the judges didn’t spring.

  11. parker Says:

    OM,

    The sheikh is dead, may all future sheikhs be born still born. I am a gentle man, but somethings bring out my inner hard ass berserker persona.

    Now pour a bit more wine in celebration because today I fulfilled my on line course to be a dog ambassador. I have 5 presentations lined up at local elementary schools to teach young kids how to be safe around dogs. Dogs and kids, joyful things happen where dogs and kids intersect.

  12. F Says:

    Neo:

    Thank you for this analysis. I am not sure I agree with your parsing of Giuliani’s words, but they are certainly as relevant as the words the judge teased out from that interview, so the interview can legitimately be interpreted either way.

    The more salient issue is whether or not the President has the right to make the determination he did, and whether or not he has to disclose all the information he had at hand when he made the decision. I think on that score Trump has it right and the judge has it wrong.

    But I wonder if it makes ay difference. The original TRO was shopped to a judge who would find against Trump, so the fact that his finding and that of the three-judge panel rejected the substance of the EO was a foregone conclusion. I fully expect the next EO to run up against the same dynamic.

    I think the more important issue is the manner in which a very large block of resistance has metastasized. I called them sore losers for a while, but the are much more. They (and I suspect there is substantial Soros backing involved) are working round the clock to influence the American public toward several conclusions: that Trump is mentally unstable, that the White House is in chaos (what new administration does NOT flounder?), that the Russians are and have been involved since the election, and that using all means at their disposal — the courts, the women’s march, the ‘Black Bloc’ at Berkeley, the nation’s largest media outlets — as weapons against Trump is both legitimate and patriotic.

    We have entered a new phase in presidential politics, where the election does not end the contest. I find this extremely troubling, and I would very much like to see some of the dissent crushed in the courts. If not, this will only get worse. Democrats have apparently not learned from Harry Reid’s moves to change the filibuster rules in the Senate that what goes around comes around. Some day the extra legal actions they are using against Trump will be used against them.

  13. parker Says:

    Sometimes one has to channel Celine. “I piss on you all from a considerable height.”

  14. Ray Says:

    Some day the extra legal actions they are using against Trump will be used against them.

    Remember when the democrats passed the special prosecutor law and used it against Nixon and then when the republicans used it against Clinton the democrats were screaming that was unfair.

  15. TommyJay Says:

    I believe I remember seeing Seattle judge Robart make the same claim; that he “knew” the intent of the EO because of the Giuliani interview. So much for black letter law. Maybe tea leaves and tarot cards would now be of help to our post-modern judges.

About Me

Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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