There has never been a time in our history when the rule of law and role of the judiciary to act as a check on executive power has been as vital as it is today.
During his presidential campaign, President Donald Trump repeatedly promised to institute a “total and complete shutdown of Muslims entering the United States.” It was a vow made as recently as December. At some point, however, he apparently realized that the U.S. Constitution clearly prohibits the kind of religious discrimination he was openly calling for.
“People get upset when I use the word ‘Muslim,’ ” he acknowledged during a television interview. So he went looking for a fig leaf, using former New York City Mayor Rudy Giuliani as his guide. Candidate Trump, according to Giuliani, wanted to find the “right way to do it legally.”
Was Giuliani’s real mission to produce some legal veneer that might allow a President Trump to fulfill Candidate Trump’s pledge to discriminate against practitioners of a religion that has 1.6 billion followers worldwide?
We don’t yet have a certain answer to that question. What we do know is that Giuliani, at Trump’s request, dutifully formed a committee — which reportedly included disgraced former National Security Advisor Gen. Michael Flynn. The committee then produced a memo that, according to Giuliani, provided Trump with a supposedly legal way to implement his plan.
The American Civil Liberties Union of Michigan, Arab American Civil Rights League, and a host of other plaintiffs in a federal lawsuit opposing the ban believe that Americans have a right to know exactly what was laid out in that memo that served as President Trump’s map. So does U.S. District Judge Victoria Roberts.
She recently ordered President Trump to turn over the memo produced by Giuliani’s committee and other key documents related to his Jan. 27 executive order banning travel from seven Muslim-majority countries and freezing a refugee resettlement program.
Up to this point the government’s lawyers have fought the release of those documents, claiming they are covered by executive privilege. But the documents being sought were produced before Trump became president. Basically the government is trying to have it both ways. Executive or presidential privilege is intended to protect presidential decision-making. Trump’s lawyers are arguing that pre-election statements should get protection because they were part of his decision-making, but at the same time they are arguing that the pre-election statements should not be considered by the courts in deciding whether the ban is discriminatory because they weren’t part of his decision-making.
The government also claims that the real motive was national security and that there is no link between the campaign statements and the order. But since we know that the President tasked Giuliani with finding a way to create a ban legally it is important that the court be able to see what kind of direction Trump was given by Giuliani and his team.
Further, national security experts have rejected this argument. There are now two internal Department of Homeland Security memos that call into question any national security justification for targeting the six listed countries. They conclude that potential terrorists are not likely to be identified through Trump’s proposed “extreme vetting.” An additional 134 former national security and other high government officials said “the revised executive order is damaging to the strategic and national security interests of the United States.”
The ruling by Judge Roberts rightfully recognizes that reality. At this point it is not known if the government will accept Judge Roberts’ order to turn over the documents or appeal the decision.
America is not an autocracy. The system of checks and balances put in place by our founders has served us well over the centuries, and is now as vital as ever.
No American is above the law, not even the president. And he, as with the rest of us, must let the legal challenge to his travel ban run its course. The entire process needs to be open and transparent.
Kary Moss is executive director of the ACLU of Michigan.