WASHINGTON ― In defending President Donald Trump’s new travel ban, the federal government would like the courts to ignore the anti-Muslim statements he made on the campaign trail. But on Wednesday, Trump’s rhetoric came back to bite him again, with a federal judge saying Trump’s own words “betray” his administration’s claim that his travel ban doesn’t target Muslims.
In placing a nationwide hold on aspects of Trump’s executive order Wednesday, U.S. District Judge Derrick Watson in Honolulu said it was very clear why Justice Department lawyers would like him to ignore statements Trump made about Islam in the past.
“A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor,” Watson wrote.
Watson found parts of the new travel ban, which targeted non-visa holders from six countries with Muslim majorities and halts refugee resettlement programs, likely violate the establishment clause of the First Amendment, which makes it unconstitutional for the government to disfavor certain religions. Citing Trump’s interview with CNN’s Anderson Cooper in March 2016 (when he said “Islam hates us”), a July 2016 interview on NBC’s “Meet the Press” (when he insisted he wasn’t rolling back the Muslim ban) and Trump’s comments during the Oct. 9 presidential debate (when he argued his Muslim ban idea had “morphed” into “extreme vetting”), Watson said there was a “remarkable” set of facts that made the purpose of the travel ban clear.
For example, “there is nothing ‘veiled’ about a press release titled ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States,’” Watson wrote, linking directly to a December 2015 statement that is still available on Trump’s campaign website.
Watson also cited statements by former New York City Mayor Rudy Giuliani, who said Trump asked him how to give his Muslim ban legal cover, and by White House senior adviser Stephen Miller, who said that the second version of the executive order would “have the same basic policy outcome” as the first executive order.
“These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose,” Watson wrote. Any “reasonable, objective observer” would conclude “that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”
Trump’s anti-Muslim rhetoric as a presidential candidate has armed travel ban opponents in other federal courts across the country. Wednesday morning, an ACLU lawyer argued before a federal court in Maryland that the judge could not “turn a blind eye” to Trump’s words on the campaign trail, which the ACLU said provided evidence that the ban targets Muslims.
Former Deputy Attorney General Sally Yates, who was fired by Trump in January after refusing to defend his first executive order on travel, had expressed specific concerns about how rhetoric from Trump administration officials and surrogates that “may bear on the order’s purpose” would make the executive order difficult to defend.
At a campaign-style rally in Nashville on Wednesday evening, Trump may have provided opponents of his executive order with yet more evidence. Trump called the second travel ban a “watered-down version of the first order” and said he’d prefer to go back to the original version.