Donald Trump’s supporters might love his candor, but that quality just cost him his travel ban.
Both federal judges who ruled to temporarily halt the policy — one in Hawaii late Wednesday and another in Maryland Thursday morning — singled out previous anti-Muslim comments made by Trump and his officials as evidence that the ban discriminated against certain religions.
U.S. District Judge Derrick Watson and U.S. District Judge Theodore Chuang both found that the ban would likely be found unconstitutional in future courts, leading them to temporarily halt it. In their opinions, the two judges pointed to multiple interviews during the campaign where Trump reiterated his promise to keep Muslims out of the United States. For instance, when Trump heard a tweet calling a Muslim ban “offensive and unconstitutional,” he responded in an interview, “So you call it territories, okay? We’re gonna do territories.”
Trump’s revised travel ban, which would’ve taken effect at 12:01 a.m. Thursday morning, did use the term “territories” and never mentions the word “Muslim.” But it would have kept immigrants from six majority-Muslim countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — from receiving new visas, as well as blocking refugees from every country in the world from entering the United States for 120 days. The original travel ban had also barred people from these countries, as well as Iraq, from entering the country regardless of immigration status.
In his nearly 45-page ruling on the case brought by Hawaii’s attorney general, Watson specifically pointed to one of Trump’s campaign press releases that called for “a total and complete shutdown of Muslims entering the United States.”
“The Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decisionmakers,” admitted Watson. But, he added, “There is nothing ‘veiled’ about this press release.”
In a separate case brought by the ACLU and the National Immigration Law Center in Maryland, Chaung agreed.
“Simply because a decisionmaker made the statements during the campaign does not wipe them from the ‘reasonable memory’ of a ‘reasonable observer,’” he wrote in his decision Monday morning to temporarily halt the ban.
The two rulings also highlighted comments made by Trump aide Stephen Miller and former New York City mayor Rudy Giuliani. Miller had said on Fox News that the second travel ban was supposed to achieve the “same basic policy outcome” as the first, which a federal judge in Washington blocked after finding it had constitutional issues.
Giuliani, meanwhile, told the network that Trump had asked him for legal advice on creating the original travel ban. “‘He said, ‘Muslim ban,’” Guiliani said. “He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
Legal scholars told VICE News last week that Trump’s own comments would likely come back to haunt him, especially since they’d already been brought up in legal challenges against the first ban. “Simply put, the government cannot say, ‘Nevermind, we didn’t mean what we said,’” explained Ruthann Robson, a constitutional law professor at the City University of New York.
And Trump might’ve hurt his case even more during a rally in Nashville, Tenn., Wednesday night, when he told the crowd, “The order [Watson] blocked was a watered-down version of the first order that was also blocked by another judge and should never been blocked to start with.”
Norm Eisen, a former ethics lawyer for the Obama administration, tweeted that Trump’s Nashville comments were a “legal disaster.”