Solicitor General Noel J. Francisco ended his Supreme Court defense of President Trump’s travel ban Wednesday by emphatically stating the president had been “crystal-clear” that his executive order had nothing to do with a campaign promise to ban Muslim travelers.
Clarity may be in the eye of the beholder.
At issue was whether Trump’s past statements about a ban on Muslim entry forever tainted his actions and showed a discriminatory intent.
Francisco told the justices his adversary in the case, Washington lawyer Neal K. Katyal, representing the state of Hawaii, had acknowledged “that, if the president were to say tomorrow that he was sorry, all of this would go away.
“Well,” Francisco continued, “the president has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban. He has made crystal-clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries of the world.”
Put aside Francisco’s slip of the tongue, calling a religion a nation. His reference to the president’s declarative statement on Sept. 25 is what had some running for the archives and searching the government’s briefs — only to come up empty.
A Department of Justice spokeswoman said Francisco got the date wrong.
He was referring to a Jan. 25, 2017, interview between Trump and ABC’s David Muir, mentioned in one of the government’s filings. That was days after Trump assumed the presidency and just before he issued the first version of the travel ban.
Here’s the relevant part:
“You’re about to sign a sweeping executive action to suspend immigration to this country,” Muir said.
“Right,” Trump answered.
“Who are we talking about? Is this the Muslim ban?” Muir asked.
“We’re talking about — no it’s not the Muslim ban,” Trump answered. “But it’s countries that have tremendous terror. It’s countries that we’re going to be spelling out in a little while in the same speech. And it’s countries that people are going to come in and cause us tremendous problems.”
Later Muir asked him if he was “at all concerned it’s going to cause more anger among Muslims ... the world?”
“Anger?” Trump responded. “There’s plenty of anger right now. How can you have more?”
What sounds like semantics has deeper meaning in the court’s deliberations.
During the campaign, Trump had called for a “total and complete shutdown of Muslims entering the United States.” But after criticism that would be unconstitutional, he began talking about restrictions against particular nations.
The first order banned travelers from seven nations, all with populations that are more than 90 percent Muslim. It covered even those who had been granted visas and caused chaos and demonstrations at airports here and abroad.
It was struck down by lower courts, and eventually the administration allowed it to lapse. The third iteration of the ban, with a slightly different set of countries, is the one being considered by the Supreme Court.
Challengers point to Trump’s statements as evidence of unconstitutional religious bias. The justices spent a fair amount of time at Wednesday’s argument asking lawyers whether Trump’s past comments mean he is forever forbidden from acting against a country with a Muslim majority.
Chief Justice John G. Roberts Jr. asked Katyal if there was a “statute of limitations” on Trump’s comments.
Katyal said there was, but that instead of moving away from the comments, the president “embraced them” as president.
“So if tomorrow he issues a proclamation saying he’s disavowing all those statements, then the next day he can reenter this proclamation?” Roberts asked.
Katyal eventually answered yes, but added, “The president didn’t do that.”
Katyal pointed to other statements and actions while Trump was president, including retweeting three anti-Muslim videos by a right-wing group.
Francisco closed by telling the justices to stick to the purpose of the executive order: to cut off entry from countries that did not provide proper vetting.
“This proclamation is about what it says it’s about: Foreign policy and national
security,” he said.