- The Washington Times - Monday, May 8, 2017

RICHMOND — The administration asked a federal appeals court Monday to look beyond President Trump’s campaign statements about Muslims and defer to his judgments as president, hoping to revive his executive order on refugees and travelers from six majority-Muslim countries.

But Mr. Trump’s attorneys found a skeptical audience among many members of the 4th U.S. Circuit Court of Appeals, who said statements by the candidate and later by the president and his team could taint the executive order.

Acting Solicitor General Jeffrey Wall said the slate should have been wiped clean once Mr. Trump was elected president, took the oath of office and formed a government. He said campaign rhetoric about a “Muslim ban” was more than a year old and didn’t determine the new policy.

“You can’t reach back to campaign statements,” he told the 13-judge panel hearing the appeal of an injunction issued by a federal judge in Maryland.

Some of the judges said that, even as president, Mr. Trump seemed to be signaling his executive order was carrying out a ban by telling supporters “we all know what that means” as he signed his initial order in January, then said a revised order in March met the same goal.

“Don’t we get to consider what was said here and said very explicitly?” Judge James A. Wynn Jr. said. “Even after the second order, there was sort of a wink and a nod — ‘Well, you know what I mean.’”

Judge Robert B. King added, “I think the president said something about having to be Christians on a TV program.”

Mr. Wall said the president’s statements on the order were ambiguous and that the president has since clarified his original intent — that the order was drafted in the interest of national security.

Besides, Mr. Wall argued, the latest executive order is legal on its face so judges shouldn’t be peering behind it to look at motives.

But judges repeatedly threw Mr. Trump’s words back at his legal team.

“He’s never repudiated what he said about the Muslim ban. It’s still on his website,” said Judge Robert B. King, one of the most pointed questioners on the court.

In fact, just hours before the hearing and after a reporter raised the issue at the White House briefing, the Trump campaign website was scrubbed of statements in which Mr. Trump called for a “shutdown of Muslims” entering the U.S.

Mr. Trump issued his first order in late January, calling for a 120-day halt on refugees and a broad 90-day ban on admissions of citizens from seven majority-Muslim countries.

Several courts, including the 9th U.S. Circuit Court of Appeals, ruled against the order. Mr. Trump issued a revised order in March that he said met the judges’ objections.

He cut Iraq from the list, leaving six countries, and limited the ban to those without previous ties to the U.S. He still calls for updated vetting procedures, for a temporary halt in refugees and for a cut in the overall refugee cap this year from 110,000 to 50,000.

A federal judge in Hawaii issued an injunction, and so did a judge in Maryland, responding to a lawsuit from the International Refugee Assistance Project and the American Civil Liberties Union.

The 9th Circuit will hear the Hawaii case on Monday, a week after the Maryland case was the issue before the 4th Circuit.

It’s the first time Mr. Trump’s revised executive order has reached an appeals court.

During the two-hour hearing, Judge Henry F. Floyd read several statements made by press secretary Sean Spicer and Mr. Trump describing the executive order. He asked whether there was “anything other than willful blindness that would prevent us from getting behind those statements.”

Mr. Wall said the text of the order does not mention religion.

Mr. Wall said some judges have showed hostility to Mr. Trump during his young administration but asked the appeals court to respect the separation of powers and let the president make national security decisions within his authority.

Lower courts have disagreed, saying Mr. Trump’s behavior during the campaign — and statements he made since taking office that he was trying to achieve the same results — have tainted the actions he takes now.

Two of the 4th Circuit’s judges — both Republican appointees — recused themselves from the case, leaving 13 judges on the panel. Nine of them are Democratic appointees.

While the Democratic appointees fired questions at Mr. Wall, Omar Jadwat, the ACLU attorney who argued the case, faced a tough line of questioning from the Republican-appointed judges.

Addressing a question from Judge Paul V. Niemeyer about whether the order is legitimate on its face, Mr. Jadwat said if the Trump administration’s assertions were taken at face value, it should have led to a different executive order.

“Are you arguing that you want more countries covered? Because that’s what it sounds like,” said Judge Dennis W. Shedd.

Judge Niemeyer went on to pose hypothetical scenarios in which the exact same order was adopted by a president who had no history of making such statements.

“In that circumstance, I think it could be constitutional,” Mr. Jadwat said.

The judge later asked the challengers about the extent of the taint of Mr. Trump’s actions and statements. He noted that the attorney general and homeland security secretary have said in their judgment that the extreme vetting policy is needed.

“Do you think that taint goes to the attorney general, to the homeland security director and to the secretary of state?” Judge Shedd said.

“The question in this case is what is the purpose of the order, whether it’s legitimate or not,” Mr. Jadwat said. He said Mr. Trump has shown animus toward Muslims that colors his actions.

Judge Niemeyer wanted to know for how long Mr. Trump would have to suffer the taint of his campaign statements. He wondered if all further immigration decisions adopted by the administration would also be challenged on grounds that the president was believed to have an animus against a particular group.

Mr. Jadwat said he did not think the animus was permanently disqualifying but that any future order would have to be evaluated on how it was produced.

The judges did not indicate when they might rule on the case.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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