Lawyers for the Trump Administration have missed a court-ordered deadline for turning over a document that gave President Trump a way to justify his immigration restrictions without aiming them specifically at Muslims. The document is said to be a paper prepared by former New York City mayor Rudy Giuliani at Donald Trump’s request.
Friday was the deadline that U.S. District Judge Victoria A. Roberts of Detroit had set for government lawyers to meet the demand of civil rights lawyers for the document. But a check on Saturday of the court’s docket showed no entry for such a response.
Later in the day Saturday, lawyers for the American Civil Liberties Union’s Michigan affiliate issued a statement saying that “the memo was to be produced on Friday, but the Trump Administration objected late Friday night, claiming, among other things, that a federal court cannot require the President to release documents.” (The full statement, as copied from the group’s website, can be read here.)
There was no word from the government lawyers, but last week they had signaled to the judge that they expected to raise objections to the challengers’ demands for documents related to the immigration order – even documents that were generated before Trump actually took office in January. The lawyers implied that they would seek to protect the documents under a claim of “executive privilege.”
It has been public knowledge that, when Trump as a candidate vowed to issue a presidential order to ban all Muslims from entering the U.S., he asked Giuliani in his role as a campaign adviser to get together a group and devise a way to make such an order legal. The response from Giuliani and whatever group he consulted was, according to public statements by Giuliani, to base the presidential order on people coming from specific nations, rather than on their religion. That is what the president ultimately did in the original order and in a revised order after the first one was blocked by the courts. The pre-inauguration statements have played a role in those court rulings so far.
In the absence of a publicly available copy of whatever filing the government lawyers made Friday with the Detroit court, it is not clear whether they made an objection only to the turnover of a single Giuliani document – the one for which Friday was the deadline to produce – or whether they made a broader claim of a non-disclosure privilege. The challengers have other document requests pending.
The government’s legal position may become clear when the court opens on Monday morning and the docket is updated.
Judge Roberts has already given a preliminary indication that she would not accept a claim of “executive privilege” to protect documents that were prepared before Trump actually became president and formed a government.
If, in fact, the judge reaches that conclusion, the administration is expected to try to challenge it in some forum, although trial judges usually have very wide discretion on how to control the document-sharing process as it unfolds in a federal court case.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.