President Donald Trump's tweets — including his recent retweets of anti-Muslim videos posted by a far-right British group — barely came up during appeals court arguments in Seattle on Wednesday over the president's latest travel ban.
But on Friday, the president's tweets featured prominently in arguments before a different panel of judges sitting on the opposite coast on the same issue.
The US Court of Appeals for the 4th Circuit in Richmond, Virginia, grappled Friday morning with how to square Trump's tweets with the administration's insistence that the president's third attempt at a travel ban wasn't rooted in anti-Muslim bias. The hearing showed that Trump's social media proclivities continue to dog the Justice Department's efforts to defend his executive actions, long after Trump made the campaign statements calling for a Muslim ban that played a major role in the fight over the first travel ban in January.
The president's proclamation largely suspends travel to the United States by nationals of seven countries — six of which are majority Muslim — as well as a group of Venezuelan government officials and their families. The US Supreme Court ruled on Monday that the Trump administration could enforce the travel ban in its entirety while the legal challenges play out in the lower courts. The justices said in their order that they expected the lower courts to issue decisions "as soon as practical."
The challengers in the 4th Circuit pressed two main threads of arguments against the travel proclamation: first, that it violated the federal Immigration and Nationality Act, and second, that it violated the constitutional prohibition against religious discrimination by the government. The Justice Department is arguing the president has broad discretion to halt the entry of foreigners into the United States, and that the travel ban was the result of an extensive, multiagency review process analyzing how foreign governments share information about their citizens with the United States — and not religious discrimination.
Judge James Wynn Jr. asked about the fact that, notwithstanding the multiagency review process, the president had been tweeting about what the plaintiffs were arguing the proclamation was actually about. The challengers, represented by the American Civil Liberties Union and other advocacy groups, alerted the court to the president's retweets in late November of anti-Muslim videos posted by Britain First. They've also pointed to Trump's other tweets and public statements that refer to Islam, including a tweet in August that referred to an unproven story about a general who dipped bullets in pigs' blood when he executed Muslims.
"What do we do with that?" Wynn asked Justice Department attorney Hashim Mooppan. "Do we just ignore reality and look at the legality to determine how to handle this case? If the reality is, that is the purpose, but the legality allows it, does that make a difference?”
Mooppan replied that the president's statements — such as his tweets — were "legally irrelevant" to the court's analysis of the president's proclamation, based on what he argued was a narrow standard for court review set by the US Supreme Court. The court shouldn't go beyond the text of the proclamation and delve into the president's motives, he said.
Wynn then asked how the court should consider the record before it if the judges decided they could reach the question of the president's underlying purpose. Mooppan pointed to the multiagency review that led to recommendations to the president. A few judges noted the government hadn't provided that report to the court. Mooppan responded that the report was classified and protected by executive privilege, which led to a separate, unresolved discussion between the judges and Mooppan about what would happen if the court ordered the government to make the report privately available to the judges to review.
Mooppan pushed back against characterizing the tweets as anti-Muslim, but said that, regardless of how they were described, they weren't legally relevant. When one judge suggested the tweets could be interpreted differently by different people, Mooppan said that given the deference the president is entitled to on national security and foreign policy matters, the judges should take the "more charitable" interpretation of his public statements.
Judge Stephanie Thacker later highlighted the August tweet about bullets dipped in pigs' blood, asking, "How am I to take that charitably?" Mooppan replied that the tweet wasn't about the substance of the proclamation.
The court appeared to be splitting along the same lines as it did when the second travel ban came before the court in May. Mooppan faced critical questions from judges who ruled against the government on the second travel ban, and ACLU Deputy Legal Director Cecillia Wang from the three judges who dissented from the court's opinion blocking the second travel ban (Judges Paul Niemeyer, Dennis Shedd, and G. Steven Agee). Wang especially sparred with Niemeyer on whether the court had jurisdiction over the case and just how much the court could question the president's foreign policy and national security decisions.
On the issue of whether the proclamation violated the Immigration and Nationality Act — which was the main focus of arguments in the 9th Circuit on Wednesday — the government is arguing Trump followed the INA's requirement that, to stop a group of people from entering the country, he had to find that they were detrimental to the United States. Judge Barbara Keenan asked if, by the government's logic, the president could say that because most terrorists are men, he was going to ban all men from entering the country.
"If 99% of terrorist acts are committed by men, aren't we really protecting this country if we just keep out the men?" Keenan asked.
Mooppan said no, because the constitution prohibited using "forbidden traits," such as gender, as a proxy. The challengers have argued that the proclamation also violates a section of the INA that prohibits nationality-based discrimination, but Mooppan said that only applied to the issuance of visas and not entry into the United States.
The full 4th Circuit agreed to hear the case, as opposed to the standard panel of three judges that typically hear cases when they first go up on appeal. In the 9th Circuit, a three-judge panel heard arguments. Neither court said when it planned to rule, but during the fight over the second ban in the spring both courts issued opinions within a few weeks of arguments.