Activists protest the travel ban outside the Supreme Court on Thursday. The 4th Circuit Court of Appeals in Richmond deliberated the measure Friday, dwelling at length on whether the president's social media messages revealed an anti-Muslim motivation. | Brendan Smialowski/AFP/Getty Images Sparks fly over Trump tweets at travel ban court arguments The president's tweet about bullets dipped in pigs' blood doesn't show an anti-Muslim bias, Justice Department lawyer argues.

RICHMOND, Va. — Among all the legal and constitutional arguments a federal appeals court considered Friday about President Donald Trump’s latest travel ban, the judges turned again and again to the same subject: the president’s provocative tweets about Muslims.

If the 4th U.S. Circuit Court of Appeals rules against the policy Trump issued in September, it seems likely that the president’s penchant for tweeting will play a significant role in the defeat.


During a two-hour court session Friday held in front of 13 judges, the jurists and lawyers dwelled at length on the degree to which Trump’s social media messages reveal an anti-Muslim motivation that undercuts his attorneys’ arguments — that the latest directive limiting travel to the U.S. is the product of painstaking review by experts at several federal agencies.

After noting several tweets Trump sent last week circulating anti-Muslim videos made by a British nationalist group, Judge James Wynn suggested that the court would be blinkering itself to focus on the administration’s reports and other formalities, while the president presents an alternate explanation for what’s behind the policy.

“Do we just ignore reality and look at the legality to determine how to handle this case?” Wynn asked. “If the reality is that is the purpose, but the legality allows it, does that make a difference? … If the allegation is that this is an effort to ban Muslims from this country and every statement that is made by the individual who is the president who is making it goes to say that, but it is done in a way to say we did a worldwide review, now it’s legal?"

Justice Department attorney Hashim Mooppan said the president’s Twitter statements shouldn’t matter.

“Under rational basis review, subjective purpose is legally irrelevant,” Mooppan insisted. “You don't look to see what’s behind the motives.”

Wynn didn’t seem convinced.

“We do have in the record the direct statements. … We do have that as to direct purpose on the part of the president,” said Wynn, an appointee of President Barack Obama.

Judge Stephanie Thacker said the government might be too narrowly defining which of Trump’s remarks are relevant to the travel ban policy. She suggested that since the ban is part of the president’s more general anti-terrorism efforts, some of his most outlandish statements on that subject are fair game for the court.

“Is the purpose of this proclamation to deter terrorism?” asked Thacker, an Obama appointee. “There was a tweet a month before the proclamation was signed tweeting a statement that shooting Muslims with bullets dipped in pigs’ blood should be used to deter future terrorism. How am I to take that charitably?”

“What the president said in that tweet about how to deal with actual terrorists, whatever you think about that, it doesn’t suggest that he — any sort of general bias against Muslims,” Mooppan asserted. “It doesn’t suggest they’re going to ban all Muslims because of a fear.”

Trump’s August tweet repeated an apparently apocryphal story that Gen. John Pershing quelled a rebellion in the Philippines more than a hundred years ago through use of such tactics.

“The president has continued to make statements some people regard to be anti-Muslim after the issuance of this order. Should we be surprised it might be construed as an anti-Muslim order?” asked Judge Diana Motz, an appointee of President Bill Clinton.

“I don’t think that’s a fair construction … of the proclamation,” Mooppan said. “The president’s statements after the order mostly said he wants it to be tougher. … It is most certainly not tougher with respect to Muslims. … They took out Muslim countries. They added exemptions for Muslim countries.”

The latest travel ban policy placed what Mooppan called “very tailored” restrictions on travelers from Chad, Iran, Libya, Somalia, Syria and Yemen, as well as North Korea and Venezuela. The proclamation replaced a previous policy that did not cover those last two countries, but did block issuance of visas to citizens of Sudan, who are now exempt.

During the spirited arguments, there seemed to be disagreement among the judges about the significance of Trump’s repeated social media postings.

“It is the department’s position, right, that the president’s Twitter account, those are the official statements of the president of the United States?” asked Judge Pamela Harris, an Obama appointee.

“Right,” Mooppan said.

“Are you conceding that tweets are official statements?” said a stunned-sounding Judge Paul Niemeyer, an appointee of President George H.W. Bush.

“That’s been the government’s position in other cases. We’ve got plenty of evidence of that,” interjected Judge Robert King, a Clinton appointee.

Mooppan said that Trump’s tweets last week did not explicitly reference his travel ban policy, so the court shouldn’t link them to that.

“The most recent tweets aren’t even about the proclamation,” the Justice Department lawyer said. “Those statements, especially the more recent ones, don’t speak to the purpose of this proclamation.”

“So, you’re suggesting, Counsel, that while the president may be showing anti-Muslim bias in his tweets, that cannot be taken over into the content of the proclamation,” said Judge Barbara Keenan, an Obama appointee. “The proclamation has to be viewed based on its language and not on any manifested anti-Muslim bias as evidenced by the tweets. Is that correct?”

Mooppan said he didn’t agree with her “characterization” of Trump’s tweets, but never explained precisely what he thought the president meant.

Judge Dennis Shedd sounded willing to give the president the benefit of the doubt, arguing that his tweets were open to interpretation.

“When a president makes statements, some would look at those statements and some would go, ‘Clearly, it’s anti-Muslim.’ Some would go, if you read them in context … they’ll go, ‘No, he’s talking about what he perceives as some kind of terrorism related in some fashion to some people who are Muslim and so-called radical Islamic terrorism.’ If you can look at his statements and each side can find something they would point to … can he get any inference on what his statements are in light of the deference he's entitled to?” asked Shedd, a George W. Bush appointee. “Some go, ‘It’s dripping with discrimination.’”

Mooppan agreed: “I think you should take the more permissible, more reasonable, more charitable interpretation of what the president did, rather than the more hostile one, but especially in this context, where we have a proclamation that was recommended by agencies that have no such statements.”

However, the lawyer arguing for opponents of Trump’s policy noted that despite the Justice Department’s effort to distance the travel ban from Twitter, a White House spokesman did appear to directly link the tweets to Trump's policy initiatives, including his travel ban orders.

American Civil Liberties Union attorney Cecillia Wang noted that when deputy press secretary Raj Shah was asked about Trump’s tweets on pigs’ blood, he seemed to suggest they were part of some effort involving the recent proclamation.

“We’re talking about extreme vetting policies, ensuring that individuals who come to the United States do not pose either a public safety or a terrorism threat, and the other measures that we want to take,” Shah told reporters . “The president is going to continue talking about these issues because they’re important for the safety and security of this country.”

While Mooppan argued that the third travel ban directive was distinct in many ways from the earlier two versions, Wang disputed that, pointing to Trump’s words in March after his second order was blocked by the courts.

“Even before the results of the study came out, the president said, ‘I'm sticking by my original plan … and I’m going to go all the way,’” Wang said.

Despite the fireworks on other topics, the most interesting questions about the legalities of the case came from Harris, the 4th Circuit’s newest judge. She argued that a principle near and dear to many conservatives — the notion of a “unitary executive” branch under the control of the president — undercut the Trump administration’s efforts to shift the focus from the president’s statements to the policy review conducted by federal agencies, like the Department of Homeland Security.

“I need you to explain to me how a review process by subordinate executive branch officials is an independent act that can cure the taint from presidential statements in the unitary executive system,” Harris said. “DHS is not an independent agency. It’s part of the executive branch and there is no constitutional space — it’s not that the president is over here and DHS is over there. It’s all the same thing. DHS is subordinate to the president.”

“The question is, what is the primary purpose of the proclamation,” Mooppan insisted.

“Which is signed by the president of the United States and he has his statements on the record,” Harris responded. Addressing Shedd’s earlier comments about deferring to the president, she again cited the videos Trump retweeted last week.

“I agree people always see things differently — some of those Nov. 29 statements, even with deference, construing them in the light most favorable to the president, it’s a little tricky to find the national security rationale in those,” she said.

The Justice Department lawyer also found himself in a pointed exchange with the judges after suggesting that some were implying that Trump might have misrepresented the findings of the agencies involved in a classified study of weaknesses in vetting procedures.

“This court should not lightly suggest that the president of the United States is just flat lying,” Mooppan said.

Wynn responded that the problem wasn’t that Trump was making stuff up, but perhaps that he was being too candid about his intentions.

“At least from my perspective, I don’t think he’s lying at all,” the judge said. “If anything, he’s one individual who’s saying exactly what he means. … He is saying it over and over and he is making it very clear. He seems to be telling the truth about what he actually feels.”

In May, the same set of appeals court judges split essentially along partisan lines in upholding an injunction against the second Trump travel ban order . In the 10-3 decision, Chief Judge Roger Gregory called the policy unconstitutional because it was “steeped in animus” against Muslims.

The legality of the third iteration of Trump’s travel ban policy is now being considered by two federal appeals courts: the 4th Circuit and the 9th Circuit. Arguments in the 9th Circuit, before a smaller, three-judge panel, took place Wednesday.

However, it seems unlikely that the ruling from either court will have any immediate impact. On Monday, the Supreme Court issued a stay that blocked lower-court injunctions and allowed the Trump administration to implement the policy in full until the justices make a decision to delve into the issue again.

