The Trump administration must turn over a memo and other documents from a commission led by former New York Mayor Rudy Giuliani that is believed to have laid out ways to “legally” ban Muslims from entering the country, a federal judge ruled on Thursday.
U.S. District Judge Victoria Roberts issued the ruling as part of an ongoing lawsuit in the Eastern District of Michigan against President Donald Trump’s second executive order banning travelers from several Muslim-majority countries and suspending the refugee resettlement program. The ban has been blocked in the courts.
The administration has repeatedly said the executive order has nothing to do with religion and does not constitute a “Muslim ban.” But the question of Trump’s intent has come up repeatedly in lawsuits over both the first and second versions of the order — including at a big-stakes hearing earlier this week in Richmond, Virginia.
The directive to turn over what has been dubbed the Giuliani memo came amid a document dispute between the Michigan plaintiffs and the Trump administration, which has urged courts time and again not to consider anything the president or his associates may have said before the travel ban was issued. The administration wants the courts to rely solely on the text of the executive order to assess its legality.
Lawyers for the Michigan challengers have argued that the executive order can’t be considered outside its broader context, particularly the “total and complete shutdown” of Muslims entering the U.S. that Trump initially pledged in 2015 during the campaign’s early days.
Judge Roberts’ directive to turn over the Giuliani memo, which the federal government must comply with by next Friday, could give the plaintiffs more insight into what exactly motivated the ban.
“Like every other court that has addressed the issue, this Court finds that it is not limited to the four corners of the Executive Order in determining its constitutionality,” Roberts wrote, pointing to recent rulings in Hawaii and Maryland that concluded past statements by Trump and his surrogates were relevant evidence.
In January, after Trump signed the first iteration of his travel executive order, Giuliani said the president had asked him to create a commission to figure out how to legally carry out a “Muslim ban.”
“When he first announced it, he said ‘Muslim ban,’” Giuliani told Fox News on Jan. 29. “He called me up and said, ‘Put a commission together, show me the right way to do it legally.’”
Giuliani described the commission as focusing on “danger” instead of religion. He said its members included former Attorney General Michael Mukasey, Rep. Michael McCaul (R-Texas), Rep. Pete King (R-N.Y.) and other lawyers.
The Arab American Civil Rights League, the American Civil Liberties Union of Michigan and other organizations suing to block the ban argued that the government should release the Giuliani memo and other documents from the commission.
“Despite his campaign rhetoric, President Trump keeps trying to convince the country that this is not a Muslim ban,” said Nabih Ayad, attorney for the Arab American Civil Rights League, in a statement. “But yet he is fighting incredibly hard to keep the public in the dark about any background information related to his Executive Order. The court’s ruling will help shed light on what his true motivations were.”
The Justice Department declined to comment on the ongoing litigation, including whether it plans to turn over the documents. Roberts’ ruling gives the government until next Friday to object to the plaintiffs’ request — the same day it must produce the material.
Next Monday, the Justice Department will be back in a Seattle courtroom squaring off against the state of Hawaii in another appeal over the travel ban’s legality.