This post has been updated.
Donald Trump won the presidency, the saying goes, because while the media was taking him literally but not seriously, his supporters took him seriously but not literally. You can't take Trump at face value all the time, his top supporters say.
On Thursday night, Trump discovered the limitations of that approach. The U.S. Court of Appeals for the 9th Circuit, it seems, believes he should be taken both seriously and literally.
In its 3-0 ruling against the Trump administration's request to reinstate its temporary travel ban for citizens of seven countries that are majority-Muslim, the judges said Trump's own words about implementing a Muslim ban are fair game. While the administration has insisted this travel ban is not the ban on Muslim immigration and refugees that Trump previously pitched, the court said that original plan matters.
From its decision (emphasis added):
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.
The ruling does not say whether these past statements actually prove the executive order is discriminatory, as the states that are suing have alleged, or even whether it actually discriminates, period.
But the judges do say such evidence "may be considered," and they will “reserve consideration of these claims until the merits of this appeal have been fully briefed.”
THIS IS BIG: 9th Circuit judges say Donald Trump's sweeping talk of a "Muslim ban" can be used as evidence for discrimination. pic.twitter.com/08vXUIQiN9
— Terry Moran (@TerryMoran) February 9, 2017
It's not difficult to find evidence of the originally intended Muslim ban. Trump's news release announcing exactly that proposal remains right there on Trump's campaign website, 15 months after he initially proposed it and even as the court was weighing whether it was pertinent to the case. The title of the release: "DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION":
"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," it says.
Rudy Giuliani did nothing to help the Trump team's cause, confirming in a recent interview that a Muslim ban was the original starting point and that the travel ban was altered to comply with the law.
"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 on Fox News.
He added: "And what we did was, 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."
The problem with Trump's seriously-but-not-literally approach to public speaking is that while those who like him may give him the benefit of the doubt, it's impossible for everyone else to know where to draw the line. Trump's team has always wanted us to take him literally when it suits their purposes and not take him literally when it doesn't. When he does something his team would rather not try to explain, they dismiss it as a guy with a big mouth — but also a big heart — being misunderstood and popping off.
But Trump's actual words are often crystal clear and incontrovertible. He may not truly intend to do something, but he clearly stated that he intended to do it.
And it seems that when Trump said he wanted to ban Muslim immigrants, he allowed some very important people to believe that was actually his goal.