National Post (National Edition)
“THERE IS NOTHING ‘VEILED’ about this press release: ‘DONALD J. TRUMP IS CALLING FOR a total and complete SHUTDOWN OF MUSLIMS entering the U. S.’ ”
These are the words of U.S. District Judge Derrick Watson quoting a statement from then presidential campaigner Donald Trump.
The judge used the words as evidence that the president’s revised travel ban discriminates against Muslims.
It increasingly appears that in legal circles, Trump’s words are coming back to haunt him.
Two judges, Watson in Hawaii on Wednesday and another judge in Maryland on Thursday, both used the president’s own words against him.
In Honolulu, Watson cited “significant and unrebutted evidence of religious animus” behind the U.S. government’s revised travel ban against six predominantly Muslim countries, dealing Trump a major setback on one of his top policy initiatives.
The judge noted that while courts should not examine the “veiled psyche” and “secret motives” of government decision-makers, “the remarkable facts at issue here require no such impermissible inquiry.”
“For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States’,” said the judge, referring to a statement Trump issued in December 2015.
“These plainly worded statements betray the executive order’s stated secular purpose.”
Thursday, in Greenbelt, Maryland, U.S. District Judge Theodore Chuang — who was appointed by then-president Barack Obama — called Trump’s own statements about barring Muslims from entering the United States “highly relevant.”
The second executive order removed a preference for religious minorities from the affected countries, among other changes that the Justice Department argued would address the legal concerns surrounding the first ban, which was also blocked in court.
“Despite these changes, the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban,” Chuang said.
Speaking Wednesday evening at a rally in Nashville, Trump called the ruling in Hawaii an example of “unprecedented judicial overreach” and said his administration would appeal it to the U.S. Supreme Court. He also called his new travel ban a watered-down version of the first one, which he said he wished he could implement.
“We’re going to win. We’re going to keep our citizens safe,” the president said. “The danger is clear. The law is clear. The need for my executive order is clear.”
Even those words could get him into trouble, according to legal experts.
Some legal scholars said Trump essentially admitted on live television that he’d rather have a travel ban that gave preference to Christian minorities and blocked many Muslims who had a right to enter the U.S., such as those with valid visas — provisions that prompted judges to block the Jan. 27 order.
Lawyers might argue that the president’s words “reinforce his real motive” in drafting the new ban, said Stephen Wasby, a legal scholar at the State University of New York in Albany.
“He said he wanted to go back to the original executive order, which was even more blatant in its religious discrimination than the revised one,” Wasby said. “Whether he likes it or not, his words will have consequences in court.”
Despite Trump’s views over the judge’s decision in the campaign-style rally in Nashville, the president’s real objective might not even be to put the policy in place but to assure his supporters he’ll fight for it, said Justin Gest, a political science professor at the George Mason University outside of Washington.
His audience is his voters, not the courts, Gest said.
“Many of his supporters feel it’s the United States against the world” and that they’ve been left behind, he said. “They identify Donald Trump as trying to change that, and you don’t change that by capitulating.”
Other legal experts said Trump’s comments shouldn’t have any bearing on the court challenges.
Trump was “simply stating the truth,” said David Rivkin, a constitutional litigator who worked for two Republican presidents, Ronald Reagan and George W. Bush.
“He was expressing his dissatisfaction in strong terms. So what?” Rivkin said.
However, Omar Jadwat, who argued the case for the American Civil Liberties Union in Maryland, said, “Unless and until the president realizes that this is a battle in which he’s going to keep losing and decides to do the right thing and abandon this course ... I think we’re going to keep winning.”
All roads, legal analysts say, now likely lead to the Supreme Court, though the Justice Department has committed only that it will “continue to defend this Executive Order in the courts.”