Trump's tweets taint travel ban, federal judges say

Richard Wolf | USA TODAY

Show Caption Hide Caption Supreme Court allows Trump travel ban to go into full effect This is the third iteration of the ban. Video provided by Newsy

President Trump's travel ban ran into a familiar problem in a federal court Friday: President Trump.

A majority of judges on the Virginia-based U.S. Court of Appeals for the 4th Circuit repeatedly cited the president's tweets about Muslims, as recently as last week, as evidence that his decision to ban most travelers from countries that are home to 150 million Muslims was based on religious animus.

The judges also voiced concern that the third version of Trump's travel ban, issued Sept. 24 and allowed to take full effect by the Supreme Court earlier this week, bans travelers indefinitely. The ban may become permanent and can be extended to other countries, they warned.

“The president is not lying about what he said," Judge James Wynn told deputy assistant attorney general Hashim Mooppan, who represented the Justice Department at the two-hour hearing. "If anything, he’s one individual who’s saying exactly what he means.… He seems to be saying it over and over."

The reference was to tweets from Trump — considered to be official White House statements — that shared videos about Muslim violence from a British ultra-nationalist group and referred to a 120-year-old fable about shooting Muslims with bullets smeared in pig's blood.

"How am I supposed to interpret that charitably?" Judge Stephanie Thacker asked the government's lawyer.

Mooppan said Trump's tweets are "legally irrelevant" because they seek to determine the president's motives. The administration's review of vetting procedures abroad is enough to establish a legal basis for the action, he said.

Seeking to counter 10 judges named to the court by former presidents Barack Obama and Bill Clinton, three judges appointed by Republican presidents noted that the latest travel ban followed a worldwide review of immigration procedures and was allowed to take full effect by the Supreme Court.

The ban sets different criteria for Iran, Libya, Somalia, Syria, Yemen, Chad and two non-Muslim countries, North Korea and Venezuela. Iraq and Sudan, included in previous, temporary bans, were not included in the final version.

"He's distinguishing among Muslim countries," Judge Paul Niemeyer, an appointee of former president George H.W. Bush, said. What's more, he said, the court lacks the authority to overrule a president in matters of foreign policy.

"All foreign policy's a black box, and it should be," Niemeyer said.

The hearing followed another held in Seattle Wednesday before a three-judge panel of the U.S. Court of Appeals for the 9th Circuit. There, the Clinton-appointed judges barely mentioned Trump's rhetoric or tweets, focusing instead on whether the president has the authority to ban foreign nationals and whether courts can overrule those actions.

While that court hasn't been hospitable to Trump's claims until now, the judges indicated the third travel ban might be entitled to more deference than the earlier ones.

"This is a little bit different, isn't it?" Judge Michael Hawkins asked lawyers representing Hawaii in its challenge to the travel ban. Having completed its review of international vetting procedures, he said, the administration has concluded that "there are certain countries in the world where you can’t tell if person A is really person A.”

Both the 9th Circuit panel and the full 4th Circuit court previously struck down an earlier version of Trump's ban, but the Supreme Court allowed it to go into effect in June except for travelers with "bona fide" ties to U.S. citizens or organizations. Those exempted include close relatives, workers and students.

The two appeals courts are expected to deliver opinions within weeks, which would give the losing side time to appeal to the Supreme Court and get the case heard during the current term, which ends in June.

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