Home / General / Are Trump’s Discriminatory Statements Relevant to the Challenge to His Muslim Ban? (SPOILER: Yes)

Are Trump’s Discriminatory Statements Relevant to the Challenge to His Muslim Ban? (SPOILER: Yes)

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sessions trump

I have some thoughts about the unanimous holding by a bipartisan 9th circuit panel allowing the suspension of Trump’s Muslim ban to stay in place. It doesn’t guarantee success on the merits going forward, far from it, but certainly this challenge has a better chance than the typical such challenge would.

However, when it comes to the shape of the Earth, views will differ! Eugene Kontorovich is very offended that 9CA used Trump’s own words against him:

There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.

Let’s assume arguendo that it is unprecedented for a court to use a president’s campaign statements when judging whether an executive action had discriminatory intent. So what? For that matter, it’s highly unusual for a president to have announced ex ante that he planned to engage in discriminatory actions. The only question is whether a presidential candidate’s statements about his intentions are relevant to the question of question of whether an executive action was motivated by discriminatory intent, and the answer is obviously “yes.”

You almost have to admire the brazenness of the shell game here, though. The typical approach of conservatives who would prefer to have the equal protection clause apply only to affirmative action programs and to vote counts that might cause Al Gore to get more votes in Florida than George W. Bush is to create evidentiary standards for showing that formally neutral texts are discriminatory and/or are being applied in a discriminatory manner that make it nearly impossible to prove, because most public officials aren’t dumb enough to explicitly acknowledge their intent to discriminate ex ante. But when a public official does say the quiet parts loud, the court can’t consider it, because this would be unprecedented! It’s a nice racket, one that I will assume prove useful when Gorsuch provides the fifth vote to uphold North Carolina’s vote suppression statute.

The formalist mock-nativite doesn’t end there:

More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.

Actually, I’m afraid I do not share this presumption. I cite as evidence “the entirety of the tenure of President Donald J. Trump” passim, with particular attention to how Trump was affected by his sworn oath to uphold the emoluments clause. I would also cite the quarter-assed process that led to Trump’s travel ban, and the fact that it was apparently driven largely by a white nationalist newspaper published with no national security experience.

But what about the slippery slope!

This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.

At oral argument, the judges asked if Trump could ban travel from all majority-Muslim countries. The question should be reversed. If the plaintiffs cast Trump’s views of immigration as impermissible, by this reasoning he cannot take the otherwise clearly legal action of restricting immigration from any of the world’s 50-odd majority-Muslim countries.

Of course not. Trump’s language is evidence of discriminatory intent, but not dispositive evidence. If after a careful process Trump issued an travel ban tailored to evidence of a terrorist threat from a particular country, this might be constitutional despite Trump’s statements. The travel ban at issue here was not that, giving Trump’s announcement of discriminatory intent more relevance.

This would mean that immigration system as created by Congress — which depends on broad executive discretion — will have essentially been destroyed.

First of all, while the system created by Congress might depend on “broad” executive discretion, it certainly did not create the system of unfettered executive discretion Kontorovich seems to want to replace it with — the authorizing statute explicitly forbids religious and racial discrimination, and intent of religious and/or racial discrimination is therefore always relevant. And no matter how broad the discretion Congress wanted to delegate to the executive, it cannot empower the president to violate the Constitution, and evidence of discriminatory intent is also relevant to whether the travel ban violates the 1st and 5th Amendments.

Reasonable people can disagree about how much weight to put on Trump’s statements, but the idea that courts shouldn’t even consider them is absurd.

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  • Snarki, child of Loki

    And Trump’s public declaration that he “Could shoot a guy on 5th Ave with no loss of popularity”, in a situation where Trump is on trial for murder after shooting a guy on 5th Ave, is not evidence for premeditation because, LOOK, A WOOKIE!

    So, the BIG question: Is Trump actually a Zika virus, inducing microcephaly in his supporters, or was it a pre-existing condition? Shape of the heads? Views differ.

    • If Chewbacca lives on Endor, you must acquit! Look at the silly monkey!

  • Johnnie

    90% of my job is trying to figure out if someone acted with discriminatory intent. Public statements such as those Trump made would, without question, be used to evaluate whether any action he has taken might be discriminatory.

    • smartalek

      I prefer to take seriously — and, obviously, quite literally — the Trumpf Administration argument that Trumpf, the President, is now a completely different person, or entity, from Trumpf the pre-President.
      Who would be better positioned to know than his own legal team?
      I find it not at all implausible that Trumpf the human has been replaced with a replicant, a host, or a pod-person (pick your favorite dystopia) — indeed, it would explain a great deal of his anti-American (or anti-human) behavior.
      The only question remaining is, is said plant working for merely human aliens, such as the Kremlin, or is it working for really alien aliens, such as the creatures from Predator, Alien, Independence Day, etc?
      Is there any way to x-ray the President from a distance?
      Can his control signals be at least tapped, or possibly even subverted, with someone equipped with the right laptop (a Mac, obviously) who could get close enough for long enough?

  • Peterr

    You know — you just know! — that the folks pressing this case from the Trump administration would love to say “Korematsu proves the rightness of our cause!”

    But the more soberminded among them fear giving the courts a chance to say Korematsu is one of the most egregious mistakes in SCOTUS history.

    • Dilan Esper

      Korematsu is also distinguishable. FDR’s order was entered at a point of absolute maximum deference to the executive- during a shooting war that was declared by Congress against an enemy which had attacked US territory. So despite the fact that the military necessity claim was BS, courts were in an extremely difficult spot.

      This case is 16 years after 9/11, there’s no Congressional declaration of war, the countries named did not attack us on 9/11 anyway, etc.

      • Incontinentia Buttocks

        And the lame excuse that the listed countries were also listed by the Obama Administration falls apart when one notes what the Obama Administration listed them for.

        • SNF

          What did Obama list them for, again?

    • bender

      IANAL, but the ruling cited Korematsu to show that the judiciary has authority to review actions taken by the executive in the name of national security. The way Korematsu was decided is irrelevant to this point.

  • Hells Littlest Angel

    May I give it a try?

    Your honor, motion to have my client’s handwritten, signed confession thrown out. Everyone knows the man is an inveterate liar.

    Not knowing fuck-all about how the law works is fun!

    • Rob in CT

      “You honor, you’ve clearly forgotten that my client is to be taken seriously, but not literally.”

      • Peterr

        “My bad, counselor. Thank you for the polite reminder.

        But now that you’ve refreshed my memory, it seems to me that you are stipulating that the Executive Order in question is void and has no actual literal power. Good to know. Any other admissions against interest that you’d like to present to the court?”

        • Rob in CT

          No, you’ve gotten it all wrong, your so-called honor.

          You see, my client’s campaign rhetoric was to be taken seriously but not literally. His policies are another matter.

          • Peterr

            Ah, I understand now. Let’s see if you and your client can understand this. Your client can call me a so-called judge from the comfort of his residence, but for an officer of the court to call me that to my face, in my courtroom, as witnessed by all the other officers of the court here gathered . . .

            You can turn in your bar card to the clerk. The paperwork may take a while, but your legal career is over. Perhaps there’s a new job your client can give to you, because you are done as a lawyer.

            And I’m literally serious about that.

            The court will stand in recess until tomorrow, at such time I expect a new attorney from the DOJ to pick up where we left off.

            • Rob in CT

              But in the documentary My Counsin Vinny

              • trollhattan

                Dese two yoot….

    • Manny Kant

      Ha ha hilarious! Because there’s definitely no such thing as a false confession!

      • wjts

        No, but there’s a difference between a confession obtained after 12 hours in a cramped interrogation room with no access to counsel and the confession of a man caught brandishing a bloody knife over a still-warm body and screaming, “I killed the bastard and I’m glad I did it!”.

    • muddy

      I read similar this morning about a child sexual abuse case. The guy had even expressed remorse, but now thinks none of it should be used. This had already been brought up to the state supreme court a few years ago, so I’m not sure why he gets another shot.

      Probably he’s hoping his prez will set precedent for him.

  • Cheerfull

    Any rule of law that would require a court to ignore evidence regarding intent where intent is a relevant issue is a bad rule. If the law says that the law is an ass.

    Korematsu, noted above, and Plessy both rested on a firm refusal of a court to actually examine the world outside the courtroom.

    • pillsy

      Yeah. I knew the argument was fishy, but couldn’t quite pit my finger on why. Also, the article really seemed to conflate “evidence” was “incontrovertible evidence”. Like, the possibility that a hypothetical President who made discriminatory statements in the campaign and then imposed the ban couldn’t succeed in court just implicitly dismissed the possibility that the President might be able to provide evidence supporting the decision beyond, “I say so.”

  • yet_another_lawyer

    Even in law school, I was always hazy on the hearsay doctrine and I’ve (mostly) done transactional work, so litigators help me out with what is likely a dumb question: Exactly how would one introduce Candidate Trump’s statements into evidence? Is the statement against interest exception flexible enough to allow the statements of Candidate Trump to be admissible solely because even at the time he had some sort of proprietary interest in the court someday upholding his prospective ban? Or is there some other way?

    • randy khan

      The hearsay rule is intended to address the situation where someone reports what someone else said, so it would cover things like newspaper articles. Where there’s video, it’s not really a problem so long as the video is authenticated.

      • yet_another_lawyer

        I was unaware of this. So, if it meets the threshold of relevancy, any statement is admissible so long as it’s caught on authenticated video (or audio)? If so, that is a surprisingly practical solution from the legal profession…

        • Peterr

          We could call it . . . evidence!

          • I thought members of your (other?) profession had a greater interest in the evidence of things not seen.

        • randy khan

          To go more deeply into the underlying theory, the idea behind hearsay is that it’s not as reliable as hearing from the person who made the statement. Pretty much all of the exceptions to the hearsay rule are built around facts that the law says make it more likely that the report is reliable. (The accuracy of that assessment is a different question.)

          When you have a recording (video or audio), all of those issues go away. That’s why, for instance, there’s no hearsay exception necessary for wiretaps so long as you get appropriate testimony about how they were recorded, that they weren’t altered, etc. The same is true of video, from whatever source.

      • Snarki, child of Loki

        Of course, for extra fun subpoena Trump to state under oath whether he made that videoed statement.

        Since perjury, even if not prosecuted, is clearly grounds for impeachment since, oh 1998 or so.

        • Incontinentia Buttocks

          But would it meet the “What Do We Tell the Children?!?” Test?

        • Little Chak

          God, I would love to see Trump in actual court, testifying on his behalf.

          Many of his previous appearances have, shall we say, not gone well. He just doesn’t have the wherewithal to restrain himself. In his mind, he’s a winner, and he can’t ever be wrong, in any degree. Leading to things like…

          “He doesn’t look like an Indian to me!”

          I’ve never seen Trump look good in a court appearance. Or, really, any formal appearance.

          • tsam

            That would be fucking hilarious. Especially since he’d have to observe courtroom rules–can’t speak out of turn, can’t wander off on tangents, gets immediately called on his lies…

            • BigHank53

              I wonder if Trump can be taunted into arguing the case before the SC by his very own self.

              • tsam

                Oh wow. Man that would ALMOST make his presidency worth it.

          • Hells Littlest Angel

            Actually, in videotaped depositions I’ve seen, Little Gloves suddenly gets very cautious when speaking. It’s almost as if he is a craven, calculating, evil motherfucker who can hold his tongue when speaking might hurt him, rather than the delightfully free-wheeling, shoot-from-the-hip hothead as his enablers sometimes portray him.

            • Hogan

              And/or he really does not know the details of his business activities.

            • jim, some guy in iowa

              remember he was able to maintain twitter silence throughout the last couple of weeks before the election as the Comey intervention was taking place

              he isn’t a genius but he isn’t quite as stupid as he acts either

            • catbirdman

              I understand he gets that way when the President of China rings him up, too.

      • If there is any question as to authenticity, they can always bring Trump in to testify as to what he really meant. They should totally do this.

    • Yossarian

      You don’t even need to get into the exceptions to hearsay bc Trump’s statements aren’t hearsay at all. From an evidentiary perspective, they are “statements by party opponent” and are treated as admissions. They are non-hearsay statements.

      • rea

        There is a hearsay within hearsay issue–Reporter says Trump said “X”–that would be hearsay except that it’s an admission. Newspaper reports that reporter says Trump said “X”–that’s another level of hearsay–but not a serious problem–just call the reporter, for example. The 9th Circuit panel dealt with this by eliciting an admission from counsel that Trump had indeed made such a statement.

    • L2P

      Statements regarding intent are exceptions to the hearsay rule under Federal law, and often defined as non-hearsay. It’s largely common sense; if out-of-court statements regarding intent were excluded as hearsay, you’d have a super hard time proving someone’s intent.

    • vic rattlehead

      I’m not a trial lawyer, but wouldn’t Trump’s statements constitute a non hearsay party admission per FRE 801(d)(2)?

      ETA: looks like I was beaten to the punch

  • tsam

    There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.

    Whether it’s specifically addressed in the rulings or not, there is no way in hell this is true.

    • rewenzo

      The 9th Circuit did address this issue in its ruling and cited to a Supreme Court case for the proposition that “circumstantial evidence of intent, including the historical background of the decision and
      statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose.”

      My recollection is that Murphy’s dissent in Korematsu also cited extensively from the general’s report to show that Japanese internment was motivated by racism and the statements of its proponents in newspapers for the same purpose.

      • tsam

        Nice! Trump getting handed a loss and looking weak and incompetent is making my Friday.

    • rea

      It may well be true, but only because no politician previously had been so open about discriminatory intent as Trump.

      • tsam

        Undone by his own big mouth.

  • paul1970

    “This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers because of how he won the presidency.”
    i.e. Trump would have the power to behave in a discriminatory fashion if he was smart enough to mask his intentions, therefore he should be granted that power anyway. It’s unfair that someone who declares they intend to break the law should be the object of any subsequent suspicion, or that a stupid person can’t get away with whatever a smart person could!

    • Scott Lemieux

      i.e. Trump would have the power to behave in a discriminatory fashion if he was smart enough to mask his intentions, therefore he should be granted that power anyway.

      This actually appears to be his argument. It’s some catch!

      • Lot_49

        Call it the Clarence-Thomas-on-abortion rule.

      • It’s some catch!

        It’s the best there is.

        • I really need to re-read Catch-22. I suspect it’s rarely been more relevant than it is now.

    • bizarroMike

      Couldn’t have put it better myself.

      As Scott said, the statements in and of themselves do not prove a discriminatory intent, but the lack of any other process or reasoning for the ban in addition to the statements make it kinda hard to escape the conclusion. And by “kinda hard,” I mean impossible for any reasonable observer.

      Motivated observers with special training however will be able to escape any undesired conclusion they want.

  • Peterr

    Data also doesn’t help Trump.

    For all the screaming about how many Muslims there are in the world that aren’t barred from entry, that’s the wrong metric to look at.

    Let’s look instead at (A) how many refugees came to the US in 2016, (B) what percentage of those were Muslims, and (C) what percentage of those would have been barred under this order. From the State Department’s office that handles refugee issues (via Will Jordan) come the numbers:

    A) 97,000
    B) 46% (46,000)
    C) 82%

    That 82% figure looks mighty mighty ugly, especially given the source of the numbers. Why, a judge or eight might conclude that TrumpCo looked at that 46,000 figure and said “how can we whack that way way waaaaaaay back?”

    • tsam

      NICE FUCKING COMMENT.

      Thank you.

    • Manny Kant

      46,000 is 47% of 97,000.

      • Hogan

        I think “(C) what percentage of those” means “what percentage of Muslim refugees.”

        • delazeur

          Yes, but Manny is saying that (B) should read “47% (46,000).”

          • Hogan

            Ah gotcha.

  • artem1s

    At oral argument, the judges asked if Trump could ban travel from all majority-Muslim countries. The question should be reversed. If the plaintiffs cast Trump’s views of immigration as impermissible, by this reasoning he cannot take the otherwise clearly legal action of restricting immigration from any of the world’s 50-odd majority-Muslim countries.

    Al Franken would say those are some mighty stinky weasel words right there. yup. I’m pretty sure they are just pissed they didn’t use that ‘reversed question’ to argue that President Obama didn’t have the right to legislate anything he didn’t strictly outline and state before he was elected.

  • tsam

    Also, does Trump really want to go down this road? Saying one thing in court that directly contradicts the promise that shored up the Republican base… Seems like the political damage would be more than Trump cares to endure.

    • David Hunt

      Nah. I expect the Base would conclude that he’s putting one over on those nasty liberals. It’s well understood that it’s okay for a Republican to tell outright lies if it’s a means to kick the right people in the balls.

      • tsam

        Well, overall, it means he was SAYING he was going to ban the filthy Muslims, but was actually lying about that. The fact that he would have to own up to lying to his base about beating up on the people they hate? I’m picturing places like Daily Stormer turning into a giant emo pity party after finding out that their fuhrer told them a lie and that there won’t be a Final Solution to the Muslim Question.

        • DAS

          Remember each segment of Trump’s base already thinks he’s lying to the other segment of Trump’s base. E.g. Trump supporting Jews who think he really is philo-Semitic (e.g. his support of the Likud Israel and that his daughter , to whom he wants to make sweet, sweet love, is Jewish) and is merely leading on, if not lying, to his white nationalist supporters just to gain a broader base of political support.

          To expand upon David Hunt’s point, Trump’s supporters (and GOoPs in general) think all politicians are lying scum and con-men. Trump’s supporters need only remain convinced that they are not the ones being lied to and that they are in on the con. Actually, they don’t even really care if a lying politician lies to them, as long as they remain convinced they are in on the con rather than being conned.

          • tsam

            Trump’s supporters need only remain convinced that they are not the ones being lied to and that they are in on the con.

            If I’m ever this gullible, I hope someone immediately shoots me in the face with a Howitzer.

            • smartalek

              This is hardly the first time, or place, that I’ve noted that Trumpf’s voters have clearly forgotten the folk wisdom that, if you sit down at a game and can’t spot the sucker within the first 30 seconds, you’re the sucker.

  • CP

    I still love the fact that he ran in no small part by promising a Muslim ban, that various politicians involved in the project said that he wanted a Muslim ban, that they’ve even gone so far as to say that they’ll make exceptions to let Christians from the “dangerous” country in, but it’s deeply unfair to call it a Muslim ban.

    • Snarki, child of Loki

      Calvinball can be a very entertaining spectator sport, as long as you are insulated from the probably consequences.

      IF ONLY Trump would try playing Calvinball with a Bengal Tiger, it would be even better.

      • I would pay good money to see that, although it might be cruel to the tiger.

        • BigHank53

          If we use a well-fed tiger, it’ll just play with its new toy until it’s broken, like bored housecats do with rodents. Why chew on something that stinks of KFC and spray-tan?

    • Peterr

      I can see a paralegal hard at work right now, collecting clip after clip after clip of Trump speeches saying “Muslim ban”. Carefully and honestly edited, it should only take a couple of hours in open court to finish watching the supercuts highlights reel.

      And when the DOJ moves to stipulate to the contents of the video rather than to let it run from beginning to end, the judge should politely decline “Oh, no, Counselor. Given the gravity of this case, and the supreme importance the DOJ and the president have placed on this executive order, we’d be remiss if we didn’t view the whole thing.”

      • sigaba

        Distressingly, isn’t this exactly what federal prosecutors did when they tried to convict the Malheur occupiers?

        At least this will never go before a jury…

    • bender

      The EO says “religious minorities” not “Christians”. If the travel ban is eventually upheld, I would like to see a lot of agitation and pressure to give the Yezidis refugee status.

      Apart from the fact that the Yezidis really are a persecuted and endangered religious minority in some of these countries, they have been libeled by some Muslims as devil worshippers. It would be fun to watch the Christian Right trying to explain why the Christians deserve visas under the EO and the devil worshippers should be kept out.

  • Joe_JP

    He is a firm member of the asshole caucus at Volokh Conspiracy.

    Anyway, to quote Village of Arlington Heights v. Metropolitan:

    “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”

    • Scott Lemieux

      Wait, Arlington Heights doesn’t have a qualification about how statements of discriminatory intent become null and void once you’ve taken an oath? I’ll be.

    • You beat me to it. Those Volokh assholes are a pox.

  • Jonny Scrum-half

    That’s an embarrassing argument by a professor at a top-ranked law school. You can spot his logical contortions and selective omissions as you’re reading the language.

    I understand why people like Kellyanne Conway make BS arguments – it’s her job, and she gets paid to do it. I’m assuming that Kontorovich wasn’t actually paid to write this, so what’s his excuse? He can’t be that stupid to think his argument is correct, and I’m assuming that he would want to be paid for writing something dishonest.

    • Rob in CT

      Rationalization. The hated liberals cannot possibly be right.

    • rea

      what’s his excuse?

      personal bigotry against Muslims?

    • eclare

      I had Kontorovich for International Law. He was the most misogynistic, condescending asshole I’ve ever had to deal with in academia, and that’s saying something coming from a place like U of C.

      • Denverite

        Ah. I see you had the non-Epstein section of Torts.

        • eclare

          Actually, no. I had Epstein for Torts. I took International Law for my 1st year elective. Big mistake (although I got a good grade – thank god for blind grading)!

  • humanoid.panda

    IANAL, but to my mind:

    He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it

    The following statement implies that since Trump swore to uphold the constitutuion, any action he takes is ipso facto constitutional. Which seems like an interesting doctrine.

    • rea

      So, if a fiance says, “First I’ll marry her, then I’ll kill her for her money,” the subsequent marriage vows would render the statement inadmissible at his trial for murdering his wife?

      • so-in-so

        So, if a fiance says, “First I’ll marry her, then I’ll kill her for her money,” the subsequent marriage vows would render the statement inadmissible at his trial for murdering his wife?

        Wait, you think any (male) GOP politician wouldn’t LOVE this to be the case?

    • pusillnonymous

      Mr. Kontorovich is apparently an adherent of the Nixon school of Presidenting.

      • smartalek

        Isn’t every Publican — when a Publican is the President?

  • Marlowe

    “When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.”

    Is he frickin’ kidding me? This is a serious legal argument? The intent of an action is presumed to be constitutional because the official taking it swore to uphold the Constitution–an oath that is as symbolic and pro forma as it gets? (It’s actually patently ridiculous on its face as applied to any federal official, let alone Der Drumpfenfuhrer).

    I had never heard of Eugene Kontorovich before reading this post, but some quick googling informs me that he is a right wing blogger and Israeli settlements supporter who teaches at Northwestern Law School. This gives me a warm glow that I turned down Northwestern Law for Cornell (albeit in the ’70s).

    • Hogan

      He also writes and lectures frequently about the Arab-Israel conflict.

      And some of those lectures occur in classrooms!

    • rea

      And of course, “When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed”–is not entirely true. After being sworn in, he asked Giuliani how to ban Muslims, and got advice to do it the way the executive order did.

      • howard

        although it doesn’t seem to have played a significant role in the court’s decision, this seems to me to be precisely the heart of the matter: giuliani’s need to show off how smart he is was the smoking gun, in my mind, and are they prepared to claim that giuliani was lying?

        • are they prepared to claim that giuliani was lying?

          I’m sure that they’re prepared to claim, if necessary, that Giuliani was demented!

          • Abbey Bartlet

            I’m sure that they’re prepared to claim, if necessary, that Giuliani was demented!doesn’t even exist, and if he does he never had any involvement with the Administration whatsoever.

    • pusillnonymous

      I thought it was bizarre that laypersons were arguing that I shouldn’t use what Trump was saying in the campaign as a predictor of how he would act as president. Seeing that mindset elevated to an apparently entirely serious legal argument is… well, I’m nonplussed.

      Also, couldn’t you argue that campaign statements are meant to reflect how one will act when one is President, after one has taken the oath? Isn’t this sort of like marrying someone who tells you flat out they’re going to cheat on you, and then being shocked when they cheat on you?

      I don’t understand how these people think.

      • so-in-so

        They’ve been conditioned that all politicians lie. Since they wanted a pony, they decided that when Trump said he wasn’t going to buy them one that was tricky double-secret code for the fact he was.

        In other words, the intellect and logic of a five year old.

      • “I didn’t think they would eat my face”, says woman who voted for Leopards Eating People’s Faces Party.

        …or that New Yorker cartoon.

      • I think you may be overestimating things by imagining that there’s any thought involved here.

      • smartalek

        I don’t understand how these people think.”

        Well, see, there’s your problem right there.
        They don’t.

        ETA: sorry, didn’t see that CassandraLeo had already covered that ground; no intent to plagiarize

    • eclare

      He used to teach of UChicago. I guess that means he didn’t get tenure, thank goodness.

      • Denverite

        According to his CV he was a visiting prof, so he wouldn’t have been up for tenure there.

        • randy khan

          Law schools often use visiting professorships as auditions for the permanent faculty. (Not all of them, but definitely some of them.) So it’s entirely possible they did reject him.

          • Denverite

            Sure, but that’s not “didn’t get tenure.” That’s “didn’t get a TT job offer.” Different things with different standards. I have no clue about the Law School, but it’s normally much harder to get a TT offer than to get tenure once you have a TT job.

    • Scott Lemieux

      This is a serious legal argument?

      No.

      • Tybalt

        Yeah, definitely not.

        What’s more, Kontorovich is just wrong, and really-lazy-wrong, about claiming that there is no precedent for taking comments other than legislative history to support a finding of discriminatory intent. There are plenty–probably hundreds–of cases where the comments of non-legislative officials are examined in order to determine the applicability of the Establishment Clause, for example. Hell, I was reading some today when trying to give a friend a sneak preview of the decision (and hell, I think the Equal Protection and Establishment Clause arguments are weakish!).

        Even in the cases he cites, where he says all the matters concerned legislative history, that just isn’t true. In Church of the Lukumi Babalu Aye members of the crowd at hearings, comments by a police chaplain, and comments by a city attorney were all reviewed and taken into account. In Village of Arlington Heights they actually said

        The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes… [then some citations] The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes… [more citations]

        Kontorovich is my least favorite kind of completely wrong here: the case-distorting kind. Just argue your point that it’s not relevant on these facts, man, and let the Supreme Court speak for itself.

        • Tybalt

          You know what’s funny? Even if it were some other Presidential candidate who had made Trump’s remarks on “Muslim bans” and won 45-odd% of the popular vote, not even Trump himself, it would still be relevant, deeply relevant, to the issue of whether the Order was promulgated with discriminatory purpose.

  • Nick056

    “When the executive director for widgets said he ‘hated all Muslims and would never hire one’ if he became the executive director for widgets, he was not yet the executive director for widgets. This statement is obviously not circumstantial evidence of discriminatory intent as it bears no reflection on his hiring decisions.”

    • pusillnonymous

      “In unrelated news, the number of new hirees who happen to be Muslim has hit a ten-year low.”

  • Bitter Scribe

    If I didn’t know better, I’d swear this Kontorovich is arguing that Trump is too dumb for us to take anything he’s said seriously.

    • To be fair, this would be a more reasonable argument than the one he’s actuality making. Or would be, anyway, if Cheeto Benito weren’t the president.

  • There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.

    Only off the cuff comments of MIT healthcare economic consultants are relevant (mandatory even) and no take backsies.

  • daves09

    But coming soon to a Supreme Court near you: the original construction/intent justices trying to weasel word around John Marshall’s rulings on reviewability.

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