Justice Department lawyers seeking to defend President Trump's restrictions on immigration have created an awkward dilemma for themselves. The difficulty of that position is now playing out in the Detroit federal courtroom of District Judge Victoria A, Roberts, because it could force the government to hand over documents that help prove that the immigration policy is invalid.
The biggest legal threat to the president’s revised executive order is that courts will continue to find that it was designed to be, and is, an unconstitutional “Muslim ban” – a policy that discriminates on the basis of religion.
And the challengers have been winning on that point so far by citing example after example of public remarks by Trump and his associates that the aim was to create a ban on entry of Muslims.
Many of those remarks were made by Trump or his surrogates during the presidential campaign, although there also have been some that occurred after he was elected and even after he became president.
To counter that challenge, lawyers for the president have been urging the courts to focus only on the specific wording in the original and revised versions of the executive order, and thus to ignore completely what has been said beyond the orders’ language. As that argument has been refined by those advocates as the cases have moved along in the federal courts, it has become an explicit plea for the courts to draw a clear distinction between pre-presidential comments and post-inauguration statements.
Since what is at issue, those lawyers have said, is an official government policy, it should be judged only on what has happened since Trump took the oath of office on January 20 and actually formed a government. Only since then, the claim goes, has Trump had the authority to actually make policy.
That was a central theme of the government’s lawyer last Monday in Richmond, VA, when the U.S. Court of Appeals for the Fourth Circuit held a hearing on the Trump Administration’s revised executive order and its legality. And the government’s lawyer is expected to repeat that theme in a similar argument on Monday in a televised hearing in Seattle before the U.S. Court of Appeals for the Ninth Circuit.
In Judge Roberts’ court in Detroit, however, that line of reasoning has exposed the Administration to the possibility that it may have to turn over to the challengers’ lawyers significant evidence that could support the claim that the immigration order was, indeed, intended to be a Muslim ban.
Here is how that is happening:
The case in Detroit, filed by the American Civil Liberties Union, has not yet gone to trial. Judge Roberts has not had a chance to rule on a forthcoming request (not even filed yet) by the ACLU to block enforcement of the revised executive order, as other judges have.
But, in preparing to file that request, the ACLU has made a series of document demands, through what is called the “discovery” process that usually precedes the trial of a case. Several of those demands are aimed directly at any papers that were generated as former New York Mayor Rudy Giuliani, while acting as a campaign adviser to Trump, carried out a task that Trump gave him to come up with a legal justification for a presidential ban on the entry of Muslims into the U.S.
Giuliani talked about his advice several times in public, and others did so, too. The advice was simple: base the executive orders curbing immigration on countries from which the unwanted travelers would come, rather than on their religion. That is what both the original executive order and the revised order actually did, although the original order had some references to religion that were not carried forward in the revised version.
The ACLU, like others representing challengers who have cited the Giuliani role, believes that will help prove that the orders do constitute a specific plan to have the Muslim that Trump explicitly proposed as a candidate. So, in a list of demands the ACLU made last month in Judge Roberts’ court, it called for the production of any memo or paper that Giuliani or others gave to Trump during the campaign last year.
There are other document demands, but the one aimed at Giuliani’s advice is the most vivid and potentially the strongest one for the challengers’ cause.
The ACLU filing said that, if the Trump Administration has any legal objection on why it should not have to turn over any requested document, it should spell that out in response.
Justice Department lawyers have already advised Judge Roberts that they will, in fact, object to the document demands. Among other arguments they have said they will put forth is a claim that the privacy of the documents related to the Trump executive orders is protected by a claim of “executive privilege” or the confidentiality of “executive deliberations.” (The law has always recognized certain privacy interests that prevent the forced disclosure of some legal evidence – such as the right of a wife not to give up evidence against a husband. Executive privilege is one such claim, and the Supreme Court has recognized its existence.)
The problem that has developed for that claim, however, is that Justice Department lawyers are contending that it applies to pre-presidential documents or communications, just as it also would apply to those developed after the presidency officially began. The problem arises out of the dilemma that government lawyers have created.
Last week, Judge Roberts reacted. Refusing the government lawyers’ request to delay the scheduling of delivery of demanded documents, the judge wrote: “On numerous occasions in other cases challenging the executive order, the government argued that Trump’s statements before he became president ‘may not be considered because they were made outside the formal government decision-making process or before President Trump became a government official.’”
The government, she went on, “cannot repeatedly make that claim, only later to assert an executive privilege objection regarding information related to pre-inauguration Trump.” She said the question of applying the privilege to pre-presidential documents was an issue never yet decided.
She ruled that the ACLU was entitled to “immediately engage” in pursuing demands for documents “on a limited basis.” She then set a deadline of May 19 – next Friday – for the government to submit the Giuliani documents the ACLU specified in its first request (or give reasons why it should not have to do so), and a deadline of June 2 for all of the other papers the ACLU has sought in its initial demands.
The judge will then rule on whether she will accept any privilege of non-disclosure to the ACLU. She has already said that the government lawyers have “exaggerated the number of legitimate objections they will have.”
The ACLU, the judge also noted, has framed its document demands to avoid materials that would be protected by executive privilege, aiming only at materials generated before the inauguration.
This battle over “discovery” in Detroit is unusual among the courthouse fights over the Trump executive orders. In the other cases, the judges have postponed that process until later stages in the challenges, but they did proceed in most cases to temporarily block enforcement of the Trump initiative.
Eventually, the courthouse feuds over the executive orders are likely to reach the Supreme Court. The “executive privilege” issue could reach the Justices from the Detroit proceeding, possibly even before the main tests of the executive orders’ validity do.
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.
