The 4th Circuit Court of Appeals on Friday focused on President Trump’s tweets about Muslims as the judges reviewed the president’s third travel ban.
Friday’s arguments at the 4th Circuit Court of Appeals arrived after a federal judge in Maryland blocked Trump’s ban in October. The Supreme Court on Monday lifted the Maryland judge’s block of Trump’s ban, allowing the administration to fully enforce the restriction against residents from six Muslim-majority countries.
In determining what action to take next, the eastern federal appeals court quizzed Deputy Attorney General Hashim Mooppan about Trump’s Twitter feed. Judge James Wynn, appointed by former President Barack Obama, asked Mooppan whether Trump’s tweets involving “the purpose of the proclamation” regarding Muslims should enter into the appeals court’s review of Trump’s newest guidance.
“Do we just ignore reality and look at the legality to determine how to handle this case?” Wynn asked. “If the reality is that is the purpose but the legality allows it, does that make a difference?”
Mooppan answered that the Trump administration does “think that all of those statements are legally irrelevant.”
Trump’s third effort aimed at implementing the travel ban focused on blocking foreign nationals from six Muslim-majority countries. The newest version of the travel ban added Chad, North Korea, and Venezuela to the list of countries affected by the travel ban. The Maryland judge’s ruling against Trump excluded North Korea and Venezuela.
Judge Pamela Harris, appointed by Obama, questioned Mooppan about whether the federal appeals court could take “judicial notice” of Trump’s retweets of videos portraying Muslims unfavorably on Nov. 29.
Mooppan answered that the appeals court could take judicial notice but that he did not think the retweets were legally relevant and noted, “The most recent tweets aren’t even about the proclamation.”
Judge Barbara Milano Keenan, another Obama appointee, pressed Mooppan further about the tweets’ role in the courts’ consideration of Trump’s travel ban.
“You’re suggesting that while the counsel may be showing anti-Muslim bias in his tweets, that cannot be taken over into the content of the proclamation,” Keenan said. “The proclamation has to be viewed on its language and not any manifested anti-Muslim bias, as evidenced by the tweets, is that correct?”
“I don’t agree with the characterization of the tweets but regardless of the characterization of the tweets, we don’t think it is legally relevant,” Mooppan said.
Judge Dennis W. Shedd, appointed by former President George H.W. Bush, asked whether the existence of differing views about Trump’s “anti-Muslim” bias and whether the president’s comments were actually about “so-called radical Islamic terrorism” meant Trump should be given the benefit of the doubt.
“If there is that possibility that people can see [the statements and tweets] differently in the total context, is there any rule on what inference he would be entitled to under this tremendous deference in this area?” Shedd asked.
“Both given the deference that he’s due in this particular area as well as the more general deference that coordinate branches are due, I think you should take the more permissible, more reasonable, more charitable interpretation of what the president did rather than the more hostile one,” Mooppan answered.
Despite Mooppan’s answers, the judges’ questions about Trump’s tweets persisted.
“The president’s tweets, you’ve already conceded, are official statements of the president of the United States and that they could be subject to charitable interpretation,” said Judge Stephanie D. Thacker, another Obama appointee. “There was a tweet a month before the proclamation was signed by the president, tweeting a statement that shooting Muslims with bullets dipped in pig’s blood should be used to deter future terrorism. How am I to take that charitably?”
“Well, so the first point your honor is that that is not about the proclamation at all,” Moopan began. “And it is not—”
“No, it is about deterring future terrorism, which I thought you said was the goal of the proclamation,” Thacker interrupted.
“Is the end goal of the proclamation, but the proclamation is dealing a specific problem which is inadequate information sharing,” Mooppan replied. “What the president said in that tweet about how to deal with actual terrorists, whatever you think about that, it doesn’t suggest that he [has] any sort of general bias against Muslims. It doesn’t suggest that they’re going to ban all Muslims because of a fear and the proclamation says the exact opposite.”
