WASHINGTON — The timing seemed too good to be true.
Just as a federal appeals court on Monday asked hard questions about the constitutionality of President Donald Trump’s executive order banning travel from six Muslim-majority countries, his campaign wiped clean the webpage where the then-candidate had pledged to institute such a ban.
Some of the judges on the U.S. Court of Appeals for the 4th Circuit wondered specifically about the legal significance of the now-scrubbed page, which they didn’t know was being removed. The page had at one point promised “a total and complete shutdown” on Muslims entering the United States.
“He’s never repudiated what he said about the Muslim ban,” Judge Robert King noted to Jeffrey Wall, the acting U.S. solicitor general defending Trump’s executive order on Monday. “It’s still on his website.”
“Can you remove things from the website?” asked Judge Diana Motz, wondering if perhaps Trump had no power over the website once he became president. If that were true, Motz said, “That would seem to suggest that ... once it’s on there, it’s on there. That’s all there is to it.”
Earlier in the hearing, Wall insisted that the campaign pledge, made 16 months before Trump took the oath of office, bore no relationship to the retooled executive order itself, which he said was silent on religion and consistent with the president’s authority to set immigration policy.
When White House press secretary Sean Spicer was asked Monday if the president was renouncing the phrase “Muslim ban” in light of how courts are now scrutinizing Trump’s words, Spicer said the administration has made its position clear in the ongoing litigation.
“There really shouldn’t be any question as to why the president is doing this and the idea of making sure we’re putting the safety of our country and our people first and foremost,” Spicer said.
Through a spokesman, the Department of Justice declined to comment on the deleted webpage and how it might affect the outcome in the travel ban litigation.
But Justin Cox, a National Immigration Law Center attorney who was in Richmond, Virginia, as the 4th Circuit weighed the legality of Trump’s executive order, called the page deletion “unusual.” Cox had argued the case in the lower court.
“I can’t imagine it was a coincidence. I find it really curious,” he said. Both the Maryland federal judge that ruled for Cox’s side and a Hawaii federal judge in a separate challenge to the executive order specifically pointed to Trump’s campaign pledge as relevant evidence supporting the conclusion that the travel ban likely violated the Constitution’s bar on the government expressing a religious preference.
The campaign page “is incredibly probative. It has a lot of value,” Cox said. “I think anyone who cared about the optics of it would’ve taken it down two, three months ago.”
In the ruling being reviewed by the 4th Circuit, U.S. District Judge Theodore Chuang wrote, “Simply because a decisionmaker made the statements during a campaign does not wipe them from the reasonable memory of a reasonable observer.”
At Monday’s hearing, Wall, the acting solicitor general, insisted that the webpage, which went live in December 2015, was no more than “an archived press statement” that was then followed by a long election season and Trump’s taking the oath of office, at which point he took on new duties and responsibilities as president.
Cox suggested that any lawyer worth his salt would have advised the new president to remove the webpage, as any delays might come back to haunt him in court.
“That’s the question at the heart of the case,” Cox said. “Do you get to consider that the president promised to do something like this?”