Two federal judges have now blocked President Trump’s revised travel ban, and both cited extensively the president’s own words — and those of his close advisers — as reasons they were convinced to do so. The comments, the judges said, provide strong evidence that the directive was meant to disfavor Muslims and thus violates the Establishment Clause of the First Amendment.
The Justice Department has argued that the comments should not be considered, because, in the department’s view, the courts should not look beyond official statements and the order itself to determine its purpose. Informal statements to the media, they say, “may not accurately reflect the government’s position.” And statements on the campaign trail, they have asserted, are particularly irrelevant.
“They generally are made without the benefit of advice from an as-yet-unformed Administration, and cannot bind elected officials who later conclude that a different course is warranted,” Justice Department lawyers wrote in one court filing.
So what is it that the president and his advisers have said that is now causing so much consternation? Here are seven examples that judges have cited as they have ruled against his new ban.
1) “A total and complete shutdown of Muslims entering the United States.”
A press release issued during Trump’s presidential campaign in December 2015 declared unequivocally, “Donald J. Trump is 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.” The release — which was still available as of 1:27 p.m. Thursday on the campaign’s website — also alleged a “great hatred towards Americans by large segments of the Muslim population.”
“Where this hatred comes from and why we will have to determine,” Trump said in the release. “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.”
Judge Derrick K. Watson noted the press release in particular in his ruling Thursday that halted Trump’s executive order, declaring there was nothing “veiled” about it.
2) “He said, ‘Muslim ban.’ … Show me the right way to do it legally.”
Former New York mayor Rudolph W. Giuliani, a close Trump adviser during the campaign, appeared on Fox News Channel after the first travel ban was signed in January and claimed to know “the whole history of it.”
“So 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,’ ” Giuliani said.
Watson cited that comment in his ruling, too, declaring it showed there was nothing “secret” about Trump’s motive in issuing it.
3) “The same basic policy outcome for the country.”
After courts froze Trump’s first travel ban, and he said he intended to issue a new one, policy adviser Stephen Miller spoke to Fox News Channel’s Martha MacCallum about the possible revisions.
“Well, one of the big differences that you’re going to see in the executive order is that it’s going to be responsive to the judicial ruling, which didn’t exist previously. And so these are mostly minor technical differences,” he said. “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
That comment was particularly important because it connected the previous travel ban — which courts had frozen — to the new one, which Justice Department lawyers have argued was substantially different from the first. Watson cited it, too, as he asserted, “These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.”
4) “You could say it’s an expansion.”
In July 2016, soon after he formally became the Republican presidential nominee, Trump was pressed in an interview on NBC News’s “Meet the Press” on whether he was rolling back his proposed Muslim ban.
“I don’t think so,” Trump responded. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. 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.”
In his ruling blocking a critical portion of Trump’s new ban, U.S. District Judge Theodore D. Chuang in Maryland cited that comment in particular.
5) “We all know what that means.”
As he signed his first travel ban, Trump told those gathered. “And this is the protection of the nation from foreign terrorist entry into the United States. We all know what that means.”
He added, “Protection of the nation from foreign terrorists’ entry into the United States. That’s big stuff.”
Chuang cited that comment, too, in his ruling. Though vague, it seemed to hint at the controversy over Trump’s campaign-trail promise of a Muslim ban. And the next day, Giuliani’s said on Fox News Channel that Trump used the phrase “Muslim ban” and asked him “the right way to do it legally.”
“In particular, the direct statements by President Trump and Mayor Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to constitute dangerous territory in order to approximate a Muslim ban without calling it one — precisely the form of the travel ban in the First Executive Order,” Chuang wrote.
6) Prioritizing Christians
Earlier in the day he signed his first travel ban, Trump was asked by the Christian Broadcasting Network, “As it relates to persecuted Christians, do you see them as kind of a priority here?”
“Yes,” the president responded.
He continued: “Do you know if you were a Christian in Syria it was impossible, at least very tough, to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
Trump’s first executive order actually contained an exception to the section that barred refugees from entering the country for members of a religious minorities. Opponents pointed to that as evidence in the order itself that the measure was meant to disfavor Muslims, and the interview with the Christian Broadcasting Network seemed to offer more proof.
The religious minority exception was removed from the revised executive order, but the two judges still highlighted the Christian Broadcasting Network interview in their rulings.
7) “The principles of the executive order remain the same.”
Trump signed his second travel ban out of public view on March 6, only to have administration officials — including the attorney general, homeland security secretary and secretary of state reveal it later. Later that day, White House press secretary Sean Spicer said, “If you think about it, the principles of the executive order remain the same.”
The administration has asserted that neither the new order nor the old one was a Muslim ban, but rather, a necessary pause in accepting refugees and travelers from certain countries for national security reasons. The judges, though, were apparently unpersuaded. After noting Spicer’s comment, Chuang declared that the mere removal of the religious exception did not “cure” the executive order of its constitutional problems, and asserted: “Crucially, the core policy outcome of a blanket ban on entry of nationals from the Designated Countries remains. When President Trump discussed his planned Muslim ban, he described not the preference for religious minorities, but the plan to ban the entry of nationals from certain dangerous countries as a means to carry out the Muslim ban.”