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Trump ordered to produce travel ban memo

Melissa Nann Burke
Detroit News Washington Bureau

A federal judge in Detroit has ordered the Trump administration to produce documents related to drafting his travel ban, including a memo from former New York City Mayor Rudy Giuliani and other advisers asked to help develop the policy that is due Friday.

U.S. District Judge Victoria A. Roberts has ruled that the pre-election communications among advisers to President Donald Trump pertaining to the travel ban should be turned over to plaintiffs in the lawsuit by June 2, although the Giuliani memo should be produced by Friday.

A U.S. Department of Justice spokesman declined to comment Monday, but in court papers government lawyers said the executive order’s purpose to bolster national security “precludes the need to look at any purported evidence of perceived religious animus.”

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 Roberts’ ruling last week involves a case that’s separate from those in Hawaii and Maryland, where federal judges have blocked Trump’s order from going into effect. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard arguments in one of those cases Monday.

The Giuliani memo was sought in a lawsuit filed by the American Civil Liberties Union of Michigan, the Arab American Civil Rights League and others, which argue that the order is an unconstitutional ban on Muslims entering the United States.

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

Plaintiffs say 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.

“We believe these documents will show exactly how the Muslim ban that Donald Trump called for on the campaign trail turned into the executive order he issued a week after taking office,” said Miriam Aukerman, senior staff attorney at the ACLU of Michigan, in a statement.

“If the administration now still refuses to turn over these papers, the question will be: What is it trying to hide?”

Nabih Ayad, attorney for the Arab-American Civil Rights League, said that while Trump has argued his order isn’t a “Muslim ban,” “he is fighting incredibly hard to keep the public in the dark about any background information related to his executive order. The court’s ruling will help shed light on what his true motivations were.”

Aukerman said Roberts’ order applies to communications before the November election, as well as those during the transition period between administrations, which would capture those of congressional staffers who reportedly took part in drafting the executive order.

The Department of Justice has argued in court papers the executive order’s purpose to bolster national security renders it legitimate on its face and “precludes the need to look at any purported evidence of perceived religious animus.”

The department also says Trump’s statements before he became president should not be considered by the courts in evaluating the constitutionality of the executive order in part because they were made outside the formal government decision-making process.

“Defendants cannot repeatedly make that argument, only later to assert an executive privilege objection to discovery regarding information related to pre-inauguration Trump,” wrote Roberts, who was appointed by President Bill Clinton in 1998.

“The Court believes defendants exaggerate the number of legitimate objections they will have and the complexity of the issues those objections will raise.”

Mitchel A. Sollenberger, a University of Michigan-Dearborn political science professor, said the information sought would likely be considered presidential communications under federal Presidential Records Act because, even if the advice was provided before the inauguration, it has to do with carrying out a presidential power.

“This is a statutory power given to the president by Congress – being able to place bans on travel. Insofar as Trump deciding how to execute a presidential power, I think anything happening before he’s inaugurated –while he’s president-elect – should be subject to disclosure,” said Sollenberger, who who has written about executive privilege.

“Obviously, there’s qualifications for that, but I don’t think there’s some kind of blanket protection here.”

A spokeswoman for Giuliani did not respond to a request for comment, but Giuliani told The Washington Post that his Fox News comments were misinterpreted and that Trump had not asked him how to craft a legal ban on Muslims.

Giuliani told the Post that Trump more accurately asked, “What can he do legally to keep the country safe?” or “How can I do whatever I’m going to do legally?”

“For example, what we told him is he shouldn’t do a Muslim ban,” he said.

During Monday’s arguments before the 9th Circuit panel in Seattle – which were broadcast by C-SPAN – one of the judges questioned lawyers on whether Trump ever disavowed his campaign statements.

“Has he ever stood up and said, ‘I said before I wanted to ban all members of the Islamic faith from entering the United States of America. I was wrong. I’ve consulted with lawyers. I’m now addressing it simply to security needs,’ ” Senior Judge Michael Hawkins asked. “Has he ever said anything approaching that?”

“Yes, he has said several things approaching that,” Acting Solicitor General Jeffrey Wall responded.

“Over time, the president clarified that what he was talking about were Islamic terrorist groups and countries that sponsor or shelter them. And over time, he and his advisers clarified that what he was focused on was groups like ISIS and al-Qaida.”

Wall stressed that the executive order doesn’t mention religion and is aimed at aliens abroad, “who themselves don’t have constitutional rights.”

Neal Katyal, who argued against the travel ban on behalf of the state of Hawaii, said Trump spoke of a Muslim ban not only during his campaign but, since his election, has “rekindled” those statements through his actions.

“We wouldn’t be standing here if it was just campaign statements on its own,” Katyal said. “This is a repeated pattern of the president.”

Asked Monday whether Trump would disavow his campaign statements, White House Press Secretary Sean Spicer sidestepped the question, saying the executive order is “fully lawful” and would be upheld.

“Right now, the president is focused on making the appropriate arguments to make sure we get the ban in place,” Spicer said.

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