Feds Succeed In Delaying Lawsuit Where Key Travel Ban Memo Is At Issue

A federal judge in Michigan put a lawsuit challenging the travel ban on hold on Friday. The plaintiffs in the case are seeking the "Giuliani memo" — the memo Rudolph Giuliani has said he and others wrote during Donald Trump's presidential campaign about how "legally" to implement what became the travel ban.

The Justice Department has scored a rare win for President Trump's travel ban.

On Friday afternoon, a federal judge temporarily halted a lawsuit where the government has been strongly fighting to keep a key travel ban memo from being turned over to groups and individuals who are challenging the ban.

The memo, described by Rudolph Giuliani and others as having been prepared by him and others during Donald Trump's presidential campaign, has not previously been made public — and could provide new insights into how the ban came to be.

US District Judge Victoria Roberts had been considering a request to order the administration or Trump's presidential campaign to turn over the document, which allegedly formed the basis for turning the "Muslim ban" that Trump initially supported into the temporary travel ban and "extreme vetting" process Trump now supports.

On Friday, though, Roberts halted the case in which that issue was pending — meaning the memo will not be turned over to challengers of the ban any time soon.

Trump has issued two executive orders attempting to advance the policy, but both have been halted by the courts. The Supreme Court is considering currently whether to hear an appeal of a challenge to the ban and whether to allow the government to enforce the ban while it is hearing the appeal.

The Friday ruling, however, was in a different case, one out of Michigan. There, the Arab American Civil Rights League (AACRL) and other groups and individuals had been seeking discovery — evidence from the other side — in their challenge to the second version of the executive order. One of those documents is the so-called Giuliani memo.

Giuliani described the creation of the memo in an interview on January 28, the day after Trump issued the first travel ban executive order:

Although Roberts did not grant the plaintiffs request for expedited discovery in the case, she also denied the government's request to shut down discovery altogether — allowing limited discovery on a regular timeline.

Since then, there have been a number of developments. In short, the federal government has been trying to stop the case from moving forward or directly to stop the turning over of the Giuliani memo.

The government had been seeking to have the case dismissed altogether, and a hearing on that was scheduled for next week. Additionally, the government had opposed the plaintiffs' motion to compel the government to turn over the Giuliani memo — a request that was pending.

Just before the Trump administration went to the Supreme Court with one of the other travel ban cases, the lawyers took another step, asking Roberts to put the AACRL case on hold. Their proposed reasoning for staying the case was due to the overlap between the issues in the AACRL case and the one that they had said they would be seeking review of in the Supreme Court.

Although the plaintiffs opposed the request to stay the case, Roberts granted the government's motion on Friday, noting, "Any decision by the Supreme Court will be particularly relevant to – and likely controlling of – this Court’s disposition of a pending motion to dismiss and pending motion to compel."

Roberts did, however, leave the door open to lifting or otherwise altering the stay order, writing, "Should circumstances change during the duration of the stay, Plaintiffs may move to lift the stay or for other appropriate relief."

Finally, she also made clear that the government officials who are being sued in the case must "preserve information in their possession, custody, or control that may be relevant to pending litigation" — including "evidence that predates January 20, 2017" and "information created, received or maintained in their personal capacities." To the extent information is in the hands of third parties, Roberts told plaintiffs they should "send preservation letters to the third parties at issue" — and could even seek issuance of subpoenas, if deemed necessary.

Read Judge Roberts' order staying the AACRL case: