President Trump’s lawyers on revised travel ban repeatedly asked about campaign promi

President Trump’s lawyers on revised travel ban repeatedly asked about campaign promises

By Ann E. Marimow and Robert Barnes
May 8 at 5:39 PM

RICHMOND — Lawyers for President Trump faced a skeptical panel of judges Monday in arguing that his travel ban on residents of certain countries was based on national security concerns rather than a campaign promise to ban Muslims from entering the United States.

The entire U.S. Court of Appeals for the 4th Circuit was considering the case, and during an extraordinary two-hour hearing judge after judge asked Acting Solicitor General Jeffrey B. Wall about statements during the presidential campaign and afterward in which Trump talked about a Muslim ban.

Wall said the order for a 90-day ban on foreign travelers from certain countries was simply to protect the country by increasing the vetting of those who are potentially dangerous. That is not only within the president’s authority, Wall said, it is his responsibility.

But Judge Barbara Milano Keenan said that could mean a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether that was his real purpose.

Under intense questioning, Wall acknowledged it could violate the Constitution to single out a religion for adverse treatment. But he said Trump’s revised executive order was neutral.

Judge Pamela Harris asked, “In what sense is it neutral?” The people in the countries selected for the ban are almost all Muslim.

But Wall pointed out that the ban did not affect Muslims from countries other than the six mentioned in the order, and said the Supreme Court has ruled in the past that in matters of immigration and national security, the president’s judgment is not open to judicial second-guessing.

Some judges also questioned whether the 90-day ban Trump ordered to review vetting procedures was still necessary. It has been longer than that since the first order was issued, several judges said, so the review should be done by now.

Wall said one of the judicial rulings stopping the order told the administration to stand down even on the review.

Omar Jadwat, an attorney for the challengers, struggled as he faced tough questioning, mostly by the Republican-nominated members of the court.

“Is the executive not entitled to some deference?” asked Judge Dennis W. Shedd.

And Judge Paul V. Niemeyer was a particularly tough questioner, saying that the president is charged with making national security decisions, and that he would be responsible if someone entering the country committed a terrorist act.

The judiciary is the third branch of government, Niemeyer said. “Don’t we have some respect for the first branch, and the second branch?” he asked.

But Jadwat said the president is “not allowed to set a policy that violates the Establishment Clause,” referring to the Constitution’s command that government not favor one religion over another.

He speculated about how it would be perceived if a hypothetical presidential candidate spoke of his dislike of Jews and, upon being elected, blocked travel from Israel because of a history of terrorist incidents there and the presence of a terrorist element in the country. The order might be facially neutral, he said, but the intent would be clear.

Several judges asked about whether a Trump campaign statement calling for a “total and complete shutdown of Muslims entering the United States” was still on his website. After it was brought up at a White House news briefing Monday, it apparently was removed just as the hearing commenced.

The Trump administration’s new policy temporarily suspends the U.S. refugee program and blocks new visas to citizens of six majority Muslim countries.

Before the order could take effect in March, a judge in Maryland and another in Hawaii halted enforcement of critical sections, pointing to comments by Trump and top advisers indicating that they wanted to bar Muslims from entry.

The 4th Circuit is considering whether to leave in place the Maryland decision siding with challengers who say the order violates First Amendment prohibitions on government denigration of a particular religion.

Judges questioned the administration’s national security justification for targeting the six countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — and about the relevance of Trump’s statements before and after he took the oath of office.

In the March ruling in Maryland, U.S. District Court Judge Theodore D. Chuang wrote that the “history of public statements continues to provide a con*vincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.”

Justice Department lawyers want the Richmond-based appeals court to lift Chuang’s injunction. It applies only to the part of Trump’s order that would temporarily block new visas for 90 days.

Before the hearing, at least 50 people marched around the courthouse to express opposition to the travel ban. They held signs that read “Refugees welcome” and “No ban, no wall” and chanted pro-immigrant messages that could be heard throughout the streets of downtown.

How quickly the 4th Circuit will rule is not known. But in an unusual step, the court bypassed the traditional three-judge panel and heard the case as a full group of 13. Two judges recused themselves: Allyson Kay Duncan, a George W. Bush nominee, and J. Harvie Wilkinson III, a Ronald Reagan nominee. Judges do not usually state why they recuse themselves from cases, but Wilkinson’s son-in-law, Wall, argued the government’s case as acting solicitor general.

To resurrect the administration’s policy in full, the Justice Department would have to win in Richmond and in its upcoming appeal of the Hawaii ruling at the U.S. Court of Appeals for the 9th Circuit — or eventually persuade the Supreme Court to intervene.

A three-judge panel of the 9th Circuit has scheduled oral arguments for May 15 in Seattle.

The revised travel order followed widespread confusion and protest in January after a first executive order led to deportations along with the detentions of people already aboard flights to the United States as the order was signed. The 9th Circuit in February upheld a court order that suspended the original travel ban, leading to the president’s revamped version.

The new order dropped Iraq from the list of affected countries and did not apply those with permanent residency status and valid visa holders, as the first order had.

In briefing the case in Richmond, government attorneys asked the court to limit its review to the language of the order. The ban does not mention religion, and the administration says it is designed to give officials time to assess existing screening procedures for entries from countries that Congress and the Obama administration previously identified as areas of “concern.”

The Justice Department said in court filings that the lower court’s reliance on campaign statements made by Trump as a candidate was “unprecedented”: “The court should have focused on official acts, not perceived subjective motivations.”

Top law enforcement officials from 13 states, including Texas, Arizona and Florida, backed the administration in court filings, urging the 4th Circuit not to interfere with “an area of strongest executive authority” and arguing that foreign citizens do not have a constitutional right to enter the United States.

The challenge in Maryland was brought by organizations and individuals, including Muslim U.S. citizens and Muslim permanent residents who are trying to reunite with relatives who would be affected by the ban. They are being represented by the National Immigration Law Center and the American Civil Liberties Union.

Allowing the policy to go forward harms the individual plaintiffs by “prolonging their separation from their loved ones, most of whom remain in dangerous conditions abroad,” according to their attorneys, led by Jadwat of the ACLU.

Opponents argue that the president’s travel order specifically violates the establishment clause of the First Amendment, which forbids the government from favoring or condemning a particular religion.

“The anti-Muslim message embodied by the order singles them out for particular condemnation and stigma because they are Muslim immigrants,” the ACLU filing said.

Diverse organizations representing technology companies in Massachusetts, art museum directors, religious leaders and labor unions filed briefs opposing the administration’s policy.

More than 40 former national security, foreign policy and intelligence officials, including former secretaries of state Madeleine K. Albright and John F. Kerry, signed on to a brief saying the blanket ban is misguided and would undermine U.S. security by adding to the narrative that the United States is at war with Islam. The order will “impair relationships with the very Muslim communities that law enforcement professionals rely on to address the threat of terrorism.”

National security is not at risk, the former officials said, because travelers are already subjected to vigorous vetting before visas are issued.

Barnes reported from Washington.

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