//  5/6/18  //  Latest Developments

As Leah Litman has explained hereand as Joshua Gelzter has twice observed at Slate (here and here)the Solicitor General made an erroneous factual representation to the Supreme Court during oral argument on the travel ban. 

On May 1, the SG filed a short letter regarding this error.

On May 3, Amir AliTake Care contributorfiled a response. Amir does an admirable job of correcting the record and explaining why the SG's clarification is inadequate. 

Here is the full text of Amir's letter:    

Re:  Trump v. Hawaii. No. 17-965 (oral argument held April 15, 2018)

Amicus curiae the Roderick & Solange MacArthur Justice Center submits this letter to clarify the factual record in this matter following the government’s misstatement at oral argument and May 1, 2018 letter to this Court. 

At oral argument, the Solicitor General concluded with an assertion that “the President has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban.” (Transcript of Oral Argument at 81:17-19.) After it was widely reported that there was no factual support for that assertion,[1] the Solicitor General sought to correct this misstatement in his May 1 letter by indicating that he had erred in identifying the relevant month and had “intended to refer to the President’s statement on January 25, 2017,” cited in a footnote of the government’s reply brief.

Although the Solicitor General sought to correct the record as to his statement that the Presi­dent had “made crystal-clear ... he had no intention of imposing the Muslim ban,” the May 1 letter did not also apprise the Court of pertinent statements made by the President and his Administration in the time between the misstatement at oral argument and the May 1 letter. On April 25, 2018 a few hours after oral argument in this case, a reporter noted to the President’s spokesperson that “the president has never actually disavowed” his Muslim ban, and asked, “Does the White House disavow that campaign proposal, or does it stand by it?”  The President’s spokesperson declined to state that the President had disavowed it.[2] On April 30, 2018, five days after oral argument in this case and the day prior to the Solicitor General’s letter, a reporter noted to the President the argument that he had not disavowed his Muslim Ban and asked if he would apologize for his campaign promise and rhetoric. The President stated, “There’s nothing to apologize for.”[3]

In the statement referred to in the May 1 letter, which took place just days after the President took office, the President was asked whether his forthcoming travel ban was “the Muslim ban.” He replied, “We’re talking about—no, it’s not the Muslim ban. But it’s countries that have tremendous terror. It’s countries that we’re going to be spelling out in a little while in the same speech. And it’s countries that people are going to come in and cause tremendous problems.”[4] It is factually inaccurate to assert that this statement, which occurred before the first Executive Order and the President’s numerous other statements on the issue, makes “crystal clear” that the President has disclaimed his intention to restrict the entry of Muslims. Amicus respectfully directs the Court to its brief filed in this matter on March 26, 2018, which provides a comprehensive account of the President’s relevant state­ments before and after taking office.[5] See also Joshua A. Geltzer, The Solicitor General Is Still Misleading the Supreme Court, Slate (May 2, 2018);[6] Dana Milbank, The Trump team discovers facts are stubborn things, Wash. Post (May 2, 2018).[7]

I would appreciate it if you could distribute this letter to the Members of the Court.

Sincerely, Amir H. Ali


[1] Joshua A. Geltzer, The White House Refuses to Disavow Trump’s Muslim-Ban Promise, Slate (Apr. 26, 2018), https://slate.com/news-and-politics/2018/04/did-noel-francisco-mislead-the-supreme-court-about-trumps-current-muslim-ban-position.html (visited May 3, 2018); Kate Shaw, The Travel Ban Arguments and the President’s Words, Harvard Law Review Blog (Apr. 27, 2018), https://blog.harvardlawreview.org/the-travel-ban-arguments-and-the-presidents-words/ (visited May 3, 2018).

[2] White House, Press Briefing by Press Secretary Sarah Sanders, Apr. 25, 2018, https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-042518/ (visited May 3, 2018).

[3] Adam Liptak, ‘There’s No Reason to Apologize’ for Muslim Ban Remarks, Trump Says, N.Y. Times (Apr. 30, 2018), https://www.nytimes.com/2018/04/30/us/politics/trump-supreme-court-muslim-ban.html (visited May 3, 2018).

[4] Aaron Blake, Donald Trump’s stunning first major interview as president, annotated, Wash. Post. (Jan. 26, 2017),https://www.washingtonpost.com/news/the-fix/wp/2017/01/26/donald-trumps-brazen-first-interview-as-president-annotated/ (visited May 3, 2018).

[5] E.g.,Br. of MacArthur Justice Center at 21-22 (describing July 24, 2016 statement in which President told public to “remember” that he would use territories as a proxy for Muslims). The President’s official spokesperson also addressed the present proclamation on November 29, 2017. Asked whether “the President think[s] that Muslims are a threat to the United States,” the official spokesperson explicitly stated: “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” Id. at 29-30; see also id. at 24-31 (describing numerous other statements after taking office, including that order was too “politically correct” and desire to do “what [he] wanted to do in the first place” and “go all the way”).

[6] https://slate.com/news-and-politics/2018/05/even-after-issuing-a-correction-noel-francisco-is-still-misleading-the-supreme-court-about-the-muslim-ban.html (visited May 3, 2018).

[7] https://www.washingtonpost.com/opinions/trump-says-his-policies-arent-based-in-bigotry-but-then-there-are-the-facts/2018/05/02/5db3e906-4e44-11e8-af46-b1d6dc0d9bfe_story.html (visited May 3, 2018).

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