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ACLU asks court to compel release of Giuliani memo

Melissa Nann Burke
Detroit News Washington Bureau

The American Civil Liberties Union of Michigan on Friday asked a federal judge to compel the Trump administration to turn over a memo from former New York City Mayor Rudy Giuliani and other advisers who helped develop the president’s controversial travel ban.

The ACLU says the Department of Justice blew a court-ordered deadline last week to produce the memo.

“If, as the administration claims, the executive order is not a Muslim ban, then why is the administration refusing to turn over the Giuliani memo?” said Miriam Aukerman, senior staff attorney at the ACLU of Michigan.

“What is in that document that the government doesn’t want the court to see?”

U.S. District Judge Victoria A. Roberts ruled earlier this month that pre-election communications among advisers to President Donald Trump pertaining to the travel ban should be turned over to plaintiffs by June 2, although the Giuliani memo was due May 19.

A spokesman for the Department of Justice declined to comment Friday.

In legal papers, government lawyers objected to releasing the memo on various grounds. They argued that a federal court may not compel the president to comply with a document request in a civil case, as he is “immune from this kind of civil injunctive action challenging his official conduct.”

Justice Department lawyers have also told the plaintiffs that, if the Giuliani memo exists, they should ask the Trump campaign or Giuliani for it.

Trump’s executive order would suspend the U.S. refugee program and temporarily ban travel from the predominantly Muslim nations of Syria, Iran, Somalia, Yemen, Libya and Sudan.

The lawsuit filed by the ACLU of Michigan, the Arab American Civil Rights League and others argues the order is an unconstitutional ban on Muslims entering the United States.

They say the executive order effectively pursues Trump’s campaign call for a “total and complete shutdown” of Muslims coming into the country. They hope the Giuliani memo and other documents they seek will support their claim of religious animus toward Muslims.

Plaintiffs said the memo from Giuliani is relevant because he created a commission at Trump’s urging to find the “right way to do it legally,” referring to a “Muslim ban.”

“So when he 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 in a Fox News interview in January.

The ACLU filed a motion Friday asking Roberts to overrule the DOJ’s objections and force the memo’s release.

“The government is engaged in a shell game to keep the Giuliani memo out of the reach of plaintiffs and the court, variously resorting to breathtaking assertions of presidential immunity, threats of future claims of privilege, and bizarre contortions of normal discovery practice, all while refusing even to search for a single document or respect this court’s May 11 order,” the plaintiffs wrote in a brief supporting the motion.

They said the Department of Justice’s claim that the president is immune from discovery is inconsistent with the principles of tripartite government and not supported by decades of case law.

Auckerman said the plaintiffs are asking Roberts to look at the memo in chambers and overrule the government’s objections.

“And if there’s no other objections with any merit, then hopefully it will get released,” she said.

The Michigan case is separate from those in Hawaii and Maryland, where federal courts have blocked Trump’s order from going into effect.

mburke@detroitnews.com