//  3/20/17  //  Commentary

Donald Trump has said a lot of terrible, discriminatory things about Muslims and he has promised to do a lot of terrible, discriminatory things to Muslims.  His lawyers have not attempted to dispute that.  Instead, they have argued that because those terrible, discriminatory comments and promises were said by Candidate Trump, not President Trump, courts cannot consider them.

On Friday evening, Judge Alex Kozinski of the Ninth Circuit issued a dissenting opinion that endorsed the government’s position.  In an appeal pertaining to Trump’s first executive order—an appeal that the government itself has voluntarily abandoned—Judge Kozinski concluded that campaign statements are outside the “evidentiary universe” of what can be considered in determining whether the President intended to discriminate.  Two of Judge Kosinski’s colleagues criticized his opinion, stating that it was unwise to decide the merits of Trump’s Executive Order when there was no live controversy before the court.  Judge Kozinski should have heeded his colleagues’ warnings.  In his haste to opine on the Executive Order, he got not only the law wrong—he got the question wrong.

As several people on Take Care have laid out, Judge Kozinski is wrong that campaign statements cannot be considered—there is ample authority to support courts’ consideration of campaign statements.  Moreover, Judge Kozinski’s various policy reasons for not considering campaign statements—that candidates often say “contradictory or inflammatory” things on the campaign trail and that it may be hard to determine when an official has retracted views expressed during his campaign—are, in fact, the ordinary business of courts.  Court’s routinely weigh contradictory evidence and make factual findings.  And here, as the courts in Hawaii and Maryland have recognized, the evidence points in one direction—clear animus (with not even an attempt to retract).

But the point I wish to focus on here is that, by engaging in this abstract question about campaign statements—whether to consider them or not—Judge Kozinski has answered a question that is divorced from the facts of cases challenging Trump’s Executive Order.  This is because those cases do not only involve campaign statements; they also involve numerous post-campaign statements in which Trump has reaffirmed the views he expressed on the campaign trail.  Thus, the cases do not present the question of whether to consider campaign statements, but whether to consider campaign statements that have been expressly referenced and endorsed by the President (and several of his senior advisors) after taking office.  And the answer to that is obviously yes. 

Trump’s Campaign And Post-Campaign Statements

To start, it is important to have some understanding of the statements relied upon by those challenging Trump’s Executive Order to prove that it is motivated by animus towards people of the Muslim faith—a critical component of their argument that the Order violates the Establishment and the Equal Protection Clauses of the Constitution. 

A comprehensive account of the President’s prior statements would take a whole brief to describe—literally, you can find the briefs that my colleagues and I filed on the subject here.  But, as a brief summary, Trump’s campaign statements included describing the Muslim faith as a “problem,” regularly equating being a terrorist with being Muslim, and repeating demonstrably false propaganda (for example, that “thousands and thousands” of Muslims were cheering on the rooftops of New Jersey as the World Trade Center).  His statements also included promises to do specific things to curtail the constitutional rights of Muslims—including closing down mosques, surveillance and profiling Muslim communities, and creating a registry for all persons who choose to practice the Muslim faith.  And—most on point here—Candidate Trump made promises to interfere with Muslims’ ability to travel to this country.

However, Trump’s statements also extend to the period since he was elected.  Consider these examples:

(1) Over a month post-election, Trump was asked whether he would reevaluate his intention to ban people of the Muslim faith.  He responded:  “You know my plans all along, and I’ve been proven to be right.” 

(2) Immediately upon signing the initial Executive Order, President Trump read its oblique title “Protecting The Nation From Foreign Terrorist Entry Into The United States” and said, “We all know what that means.” 

(3) That same day, President Trump did a television interview, in which he was asked whether his Executive Order was intended to make Christians “a priority here.”  He answered “yes” and, after comparing the ability of Christian refugees to enter the U.S. to Muslim refugees, he said “we are going to help them,” referring to Christians.   

(4) On the day that President Trump’s second order was enjoined by a federal judge in Hawaii, President Trump took to the podium to say that he would rather to “go all the way, which is what I wanted to do in the first place.”

(5) President Trump’s campaign website—which is still updated on a daily basis—continues to state that he supports “a total and complete shutdown of Muslims entering the United States.”

In these statements, Trump not only fails to retract the plans articulated during his campaign, he references them and expresses an intent to stick to them.

Trump’s Post-Campaign Statements Necessarily Open The Door

In light of Trump’s post-campaign statements, even if one were to assume a general rule against considering statements made during a campaign, it would be necessary to consider them here.  In order to understand the motives of President Trump based on statements he has made in his official capacity—his “plans all along” and “what that means”—one must go to what he, himself, is referring to:  the statements he made on the campaign trail. 

This makes clear that Judge Kozinski was, as his colleagues cautioned, deciding a case that doesn’t exist.  In his dissenting opinion, Judge Kozinski himself acknowledged that a court is permitted to consider “discussions and contemporaneous statements” by officials to determine whether a law has a discriminatory purpose.  Obviously, in the event those contemporaneous statements incorporate or rely upon other statements, a court should not just shrug and give up—it must look at the referenced statements.  In this case, those statements are the ones Trump made on the campaign. 

This is not just a matter of relevance, it’s a matter of necessity.  Consider the following hypothetical to put it at its sharpest:  When signing his Executive Order, President Trump says, “I am undertaking this action for the reasons I stated in my March 9, 2016 CNN interview.”  Even if Judge Kozinski believes that one cannot, in the ordinary case, attribute an official’s campaign statements to him once elected, he presumably would not expect a court to read this statement, shrug, and give up.   To understand the President’s purpose, as described while in his official capacity, it would be necessary to dig up the March 9 pre-election statement and see what it says (in this instance, it would be that people of the Muslim faith harbor “tremendous,” “unbelievable hatred” and that it is not possible to distinguish between radical Islam and Islam itself).

So, while a court should consider campaign statements in any case where those statements are relevant to discerning governmental intent, judges don’t even need to think about the ordinary case here.  This President—since he has been elected—has acted in a manner that leaves no choice but to consider campaign statements and it is undisputed that those campaign statements are marred by hatred and animus toward Muslims.  That’s part of what makes this case “remarkable,” in the words of Judge Watson of Hawaii, or “highly unique,” in the words of Judge Chuang of Maryland.  It is also what Judge Kozinski failed to appreciate in his dissenting opinion.      


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