Our fact-checking inquiry next takes us to former-Mayor Rudolph Giuliani. On Sunday, January 29, 2017, he was interviewed on the Fox News Channel about the two-day-old executive order. The Aziz court offered this excerpt:
‘I’ll tell you 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.’… ‘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. It’s based on places where there are [sic] substantial evidence that people are sending terrorists into our country.’
From this, Judge Brinkema concludes that “Giuliani said two days after the EO was signed that Trump’s desire for a Muslim ban was the impetus for this policy.” The use of the phrase “impetus” here is unclear. Giuliani’s remarks establish that a “Muslim Ban” was not lawful, but it was lawful to deny entry to aliens from “areas of the world that create danger for us.” The policy was “not based on religion.” To use Trump’s parlance, these are the dangerous “territories.”
Judge Brinkema’s ellipses also omitted who worked on the policy. Giuliani said, “I put a commission together with Judge [and former Attorney General] Mukasey, with Congressman [and Chairman of the Homeland Security Committee] McCaul, [Representative and former Chair of the Homeland Security Committee] Pete King, whole group of other very expert lawyers on this. Judge Brinkema discounts these experts’ opinion, because “there is no evidence that this commission was privy to any national security information when developing the policy.” (How could she possibly say that about the Chair of the Homeland Security Committee?!). But in any event, this inquiry moves the goal posts. If she thought Giuliani was in fact enabling a secret-Muslim ban, then that would be true, too, of former-Attorney General Mukasey. The court’s uncharitable reading of both Trump and Giuliani is better served for a Sunday morning talk show, not a federal court.