A team of lawyers challenging President Donald Trump’s travel ban in Detroit asked a federal judge there to compel the Trump administration to turn over a memorandum that former New York Mayor Rudy Giuliani is believed to have written in support of the travel restrictions.
U.S. District Judge Victoria Roberts had already ordered Department of Justice lawyers to come up with the document by last Friday, but the government offered “a laundry list of objections” and refused to comply, according to a motion filed Friday by a coalition that includes the Arab American Civil Rights League and the ACLU of Michigan.
The motion was filed a day after a federal appeals court in Richmond, Virginia, largely upheld a national injunction forbidding the Trump administration from enforcing the travel ban, which a majority of judges found “drips with religious intolerance, animus, and discrimination.”
Since the White House rolled out the first travel ban in late January and a watered-down version in March, courts across the country have prevented it from going into effect, concluding that the executive order is likely unconstitutional.
The plaintiffs in the Michigan case believe Giuliani’s memo is “central” to their similar argument that Trump and his team crafted the travel ban with the intent to discriminate against Muslims — a claim that, if proven, would mean the government violated the Constitution’s prohibition on expressing disfavor for a religious group.
“The Government is engaged in a shell game to keep the Giuliani Memo out of reach of Plaintiffs and the Court, variously resorting to breathtaking assertions of presidential immunity, threats of future claims of privilege, and bizarre contortions of normal discovery practice, all while refusing even to search for a single document or respect this Court’s May 11 Order,” read the challengers’ motion.
A number of judges, including those who ruled against the travel ban on Thursday, have taken notice of a Fox News interview — conducted one day after Trump signed his original executive order — in which Giuliani said Trump consulted with him on how to “legally” enact the Muslim ban he promised during his campaign.
“Giuliani was quite clear that the President wanted to enact a ‘Muslim ban’ and had assembled a commission to study how to create a ‘Muslim ban’ legally,” wrote U.S. Circuit Judge Stephanie Thacker in a concurring opinion agreeing that statements made after a president takes office are relevant to the case.
In a strange twist earlier this week, Giuliani told a judge in an unrelated New York case that he played no role in crafting and drafting the executive order banning travelers from several predominantly Muslim nations from entering the country — an apparent contradiction that could raise suspicions for Judge Roberts, who is handling the dispute over the memo.
Jason Raofield, an attorney with the legal team trying to get hold of the memo, suggested in an interview that the government’s claim the document is beyond their reach and had no bearing on the content of the executive order is an attempt on Trump’s end to take them for fools.
“How gullible does he think we are, and what is he hiding?” Raofield said.
A ruling from Roberts is expected in the coming days or weeks, as is another ruling in a separate travel ban challenge brought by the state of Hawaii.