Judges Are Still Grilling Government Lawyers Over Trump Tweets

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Kevin Daley Supreme Court correspondent
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President Donald Trump’s tweets continue to hinder government lawyers defending the latest iteration of the administration’s travel ban.

The full 4th U.S. Circuit Court of Appeals heard argument in Richmond, Va. Friday in the latest challenge to the administration’s travel sanctions, which were levied against Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen. Several members of the 13-judge panel grilled Justice Departments lawyers about Trump’s tweets, suggesting they betray the anti-Muslim bigotry lurking behind the travel sanctions.

Judge James Wynn appeared to be the primary administration critic on the panel, asking Justice Department lawyer Hashim Mooppan if the court could take notice of Trump’s behavior on social media, as when he retweeted a far-right British account featuring video of Islamist violence

“What do we do with that?” Wynn wondered. “Do we just ignore reality and look at the legality to determine how to handle this case?”

Wynn previously compared the administration’s travel restrictions to Korematsu v. U.S., a case in which the Supreme Court sanctioned the internment of Japanese Americans during World War II.

Judge Stephanie Thacker raised the president’s repeated invocation of an unverified story involving Gen. John Pershing. The general allegedly soaked bullets in pigs blood before using them against an Islamic insurgency in the Philippines during the early 20th century. Historians are dubious of the story’s authenticity, though Trump has promoted the tale on Twitter and in his public remarks.

“How am I to take that charitably?” Thacker asked.

Judge Diana Motz wondered, as a general matter, why Trump continued to make remarks “some people regard to be anti-Muslim after the issuance of this order.”

Throughout the argument, Mooppan insisted that Trump’s tweets are not relevant to the issuance of the order. The latest travel sanctions, which were promulgated in September. While the original travel ban was in place, an interagency task force identified some 15 countries who fail to comply with baseline U.S. security standards. After consultation with the relevant foreign governments, that list was reduced to eight states, several of whom were described as intentionally noncompliant.

Mooppan emphasized Trump’s tweets did not inform or drive the process.

Democratic attorneys general and civil rights groups challenging the law say the president cannot discriminate against migrants on the basis of nationality, and that the alleged animus prompting the sanctions violates the First Amendment.

A decision in the case is expected before the end of the year. The Supreme Court allowed the administration to implement the latest proclamation in early December.

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