//  5/8/18  //  Commentary

It has become commonplace to ask “what happened to facts” in the age of Trump.  The Solicitor General’s turn at the Supreme Court in Trump v. Hawaii shows how the Trump administration sucks people in its orbit into the same post-factual world.

In a post last week, I highlighted the oddity of the SG’s closing argument in Trump v. Hawaii. The SG wrapped up his time at the lectern by insisting that Trump “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban.”  As several commentators (Kate Shaw, Josh Geltzer, and Mike Dorf) all noted, there was no such statement they could find, and certainly no such statement on September 25th.

The SG subsequently filed a letter at the Court indicating he misspoke; the pertinent statement was actually on January 25th, not September 25th. That the SG would point to the January 25th was already somewhat apparent when I wrote my last post: After a spokesperson for the SG’s office initially told Business Insider that the SG was referring to a speech Trump gave in Saudi Arabia in May, Robert Barnes later reported for the Washington Post that no, the SG was actually referring to a statement on January 25th.

Just to recap, the President’s January 25th statement was made in the course of an interview with David Muir on ABC News. This is the relevant exchange:

“You’re about to sign a sweeping executive action to suspend immigration to this country,” Muir said.

“Right,” Trump answered.

“Who are we talking about? Is this the Muslim ban?” Muir asked.

“We’re talking about — no it’s not the Muslim ban,” Trump answered. “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 us tremendous problems.”

In my previous post, I flagged a few reasons why I did not think this statement made “crystal clear” that Trump had “no intention of imposing the Muslim ban,” as the SG said.  (The SG also said that, in addition to disavowing the President’s campaign promise to ban Muslims from entering the United States, the President also “made crystal-clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries [sic] of the world.”)  Just to recap some of the reasons why:

  • There is no disavowal of the campaign promise
  • There is no statement he would never attempt to fulfill that campaign promise in any way
  • The statement, made before the entry ban was signed, merely recites the legal defense the President’s lawyers have given for the Muslim ban:  “It is not a Muslim ban.”  That’s a conclusion, not a disavowal. 
  • The day of the argument, the White House spokesperson refused to say whether the administration had disavowed the campaign promise to ban Muslims from entering the United States.
  • The President has not disavowed the campaign promise at public appearances after the argument.
  • The President declined to disavow the campaign promise to ban Muslims when asked to do so by a reporter after the argument.
  • The President has refused to disavow the campaign promise at public appearances after his inauguration and after the entry ban was signed.
  • The statement was made before the first entry ban was signed, and the entry ban’s text included facial preferences for religion (providing exemptions for religious minorities from a Muslim-majority country to enter) and dog-whistling on Islam that paralleled the President’s stated justifications for his proposal to ban Muslims from entering the United States  (“The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.” (emphases added—given that the order was purportedly based on nationality, it’s a bit odd to describe several different nationalities as “ideologies”).
  • The President’s now-lawyer/former adviser Rudy Giuliani admitted that the President came to him wanting to know how to enact a Muslim ban but make it legal, and they settled on an order that would be based on nationality (which the current order is).
  • The President has repeatedly declared that the order is a “watered down” “P.C.” version of … something that apparently isn’t “P.C.”
  • The President kept his campaign promise to ban Muslims on his website until **May** 2017. 

And those were just the reasons in my initial post.  Since that time, Josh Geltzer at Slate and the Macarthur Justice Center (led by Take Care contributor Amir Ali), in a letter to the Supreme Court, have offered some additional reasons why the statement the SG identified does not, on its own, demonstrate that the President made “crystal clear” that he had no intention of imposing a Muslim ban.  Their writings also underscore why the statement the SG identified does not, in conjunction and in context with everything else the President has said, make it “crystal clear” that he had no intention of imposing a Muslim ban.

To their observations (and I’d encourage you to read both Josh’s post and the letter), I’d add another:  The statement the SG is referring to was made in the course of a wide-ranging interview that touched on many different topics (the wall, which Mexico was going to be paying for, the size of the crowd at inauguration, the egregiously false claim that there were several million illegal votes cast in the election, etc.).  That hardly makes for a setting to provide a “crystal clear” disavowal of the President’s campaign promise to ban Muslims.  Moreover, the “statement” the SG identified as a “crystal clear” disavowal was in response to a question; if the President really wanted to disavow the campaign promise, why did he have to wait until an interviewer asked him a pointed question?

The incident says something about the degree of looseness with the facts the SG’s office is apparently now willing to tolerate. After the SG’s closing, no one(and I mean no one without prompting from the SG’s office in statements to the press) could identify when the President’s purported “disavowal” of the Muslim ban had occurred, because no one ever heard the President say anything that even sounded like a disavowal.  In light of that, it is hard to see how the President could have made “crystal clear” that he was disavowing his campaign proposal to ban Muslims from entering the United States.  It was a good thing that the SG felt compelled to correct the date of the President’s purported statement; it is another that he feels no need to correct the assertion that the President has made “crystal clear” that the President had no intention of imposing a Muslim ban.


Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

Pinkwashing the Supreme Court

7/2/20  //  Commentary

The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.

Take Care