“Thanks! See you in court next week,” wrote Neal Katyal, a lawyer on the travel ban case out of Hawaii, as he posted a link to news coverage of the president’s tweets.
“It is unprecedented and, until recently, unthinkable that an American president would incite religious hatred on such a powerful social media platform,” said Omar Jadwat, an ACLU lawyer representing those suing in Maryland. “But the videos are consistent with Mr. Trump’s commitment to white supremacy and his other anti-Muslim statements and policies.”
Oral arguments are scheduled for next week in both federal appeals court cases over the travel ban. The latest iteration — the third ban that Trump has ordered — blocks various people from eight countries, six of them with Muslim majorities, from entering the United States. But federal judges in Maryland and Hawaii have partially blocked its implementation, permitting the administration to keep out only those without any bona fide ties to the United States.
U.S. District Judge Theodore D. Chuang, in particular, wrote that the president’s comments on the campaign trail and on Twitter convinced him that the latest directive was akin to an unconstitutional ban on Muslims. Before he was elected, Trump had called for a “total and complete shutdown of Muslims entering the United States.”
“The ‘initial’ announcement of the Muslim ban, offered repeatedly and explicitly through President Trump’s own statements, forcefully and persuasively expressed his purpose in unequivocal terms,” Chuang wrote.
Leon Fresco, who worked in the office of immigration litigation in the Justice Department under President Barack Obama, said that because of the president’s history of comments on Muslims and the ban, his antipathy toward Islam is “baked into the cake of this case.” Appeals court judges will have to decide, he said, whether that means Trump cannot take any action when it comes to restricting the issuance of visas.
“The fact that essentially we have a president who has decided that these are his feelings, does this mean that even if scores of lawyers have tried to implement a policy that’s legal based on actual security concerns, the president’s individual biases scar that forever?” Fresco said.
He added: “The problem is you just have this terrible set of facts where who knows what will be decided because he keeps showing this bias that infects all of the good faith of any decision that might be made.”
Justice Department lawyers argued in a recent court filing that Trump’s statements “primarily reflect an intent to protect the United States from the threat of terrorism by nationals from countries that pose heightened risks, and in any event cannot disable the President from enacting the Proclamation’s religion-neutral restrictions in accordance with the national-security and foreign-policy recommendations of Cabinet members whose motives have never been questioned.”
A Justice Department spokeswoman referred questions to the White House. After the president’s tweets Wednesday, a White House press secretary was asked whether Trump felt Muslims were a threat to the United States.
“No, look, the president has addressed these issues with the travel order that he issued earlier this year and the companion proclamation,” said principal deputy press secretary Raj Shah. “There are plenty of Muslim-majority nations whose citizens can come to the United States without travel restrictions. But those that pose public safety or terrorism threats through our worldwide security review that was overseen by the Department of Homeland Security is why there were certain travel restrictions put in place.”
Shah added later that Trump had “been talking about these security issues for years, from the campaign trail to the White House.”
Jadwat, the ACLU lawyer, noted on Twitter that was not out of step with what he and others have been arguing.
“‘From the campaign trail to the White House’ — did they pull that line from one of our briefs?” he wrote.