From the day 15 months ago when the first challenger sued President Trump over his plan to restrict entry to the U.S. of foreign nationals from Muslim-majority nations, a central question always has been: how will the judges react to the President’s many statements or tweets about why he wanted to do that? That remains a key issue as the Supreme Court ponders a decision on the plan.
That question was on the mind of the Administration’s top courtroom lawyer – Solicitor General Noel J. Francisco – when he stood up in front of the Justices last month to make his closing argument in support of the President. And part of what he said about that kept the controversy about presidential motive going in the days since the hearing ended.
An experienced advocate like Francisco knows that the lawyer with the last word in a Supreme Court hearing has a potential advantage, just as a prosecuting attorney does in the closing argument to a jury in a criminal trial. It is a chance to fill any gaps left in the lawyer’s case up to that point.
In the Supreme Court, though, there is also a special risk: the rebuttal time at the end of a hearing is usually very short, and there is a chance that the Justices will use up much of that time by asking questions, so that the lawyer might not get to make all of a planned rebuttal. Or the brevity of the opportunity may not have allowed the lawyer to make a point clearly enough to have the desired impact.
Francisco had four points to make in rebuttal, some in response to what the Justices had said during the hearing up to then, and one in particular in response to his adversary, Neal K. Katyal, the Washington, D.C., lawyer representing the state of Hawaii and other challengers to Trump’s plan.
He clearly had concluded that Katyal had given him an opening to try to persuade the Court that the Trump initiative was not intended to be “a Muslim ban” – a form of religious discrimination that could make the plan unconstitutional under the First Amendment. Francisco chose to keep the point to the last, for a final flourish that might leave a lasting impression on the judicial mind.
Here is what probably went into his strategy:
At various points as the three versions of the Trump entry restrictions were being reviewed in the federal courts, several judges had expressed concern about tying a president’s hands to deal with perceived potential terrorist threats from abroad, if something a president had said at some point about the motive for a policy would forever taint the use of the Chief Executive’s power to take such action. What, some of those judges asked, would a president need to do to remove that taint; would it be sufficient to renounce the prior statements?
That was important because Donald Trump, as a candidate for the presidency, had sometimes called for a flat “Muslim ban,” and he or his aides had continued – after he was sworn into office – to say or tweet things suggesting that this might still be the motive.
In last month’s hearing at the Supreme Court, Chief Justice John G. Roberts, Jr., revived that lingering question about taint.
Katyal was at the lectern, making his points, when Roberts asked: “Your argument based on discrimination based on campaign statements, is there a statute of limitations on that, or is that a ban from presidential findings for the rest of the administration?” The question went directly to President Trump’s ability to cure a First Amendment violation, if there was one.
Hawaii’s lawyer did not immediately or directly answer Roberts’ specific question, but Roberts kept pressing. He asked again: “My question was whether or not the inhibition on the ability to enter one of the proclamations applies forever?”
“No,” Katyal said. “I think the president could have disclaimed – you know, easily moved away from all of these statements, you know, but instead they reembraced them. That’s the difference.”
Roberts pursued further, even more pointedly: “If tomorrow he issues a proclamation saying he’s disavowing all those statements, then the next day he can reenter this proclamation?” Katyal answered: “That’s exactly what this Court said [in a prior decision about official acts that caused religious discrimination].”
Still not satisfied, the Chief Justice asked: “Is your answer to my question yes?” Katyal said “Yes.” Roberts continued: “Tomorrow, he issued a proclamation disavowing those statements…” The lawyer interrupted, saying “Absolutely.”
Trying to nail down the point, the Chief Justice continued with his question: “ – then the next day he could reenter this and your discrimination argument would not be applicable?” Katyal said that was what he had said to a lower court earlier, adding: “The President didn’t do that.”
When it was Solicitor General Francisco’s time for rebuttal, he appeared to have concluded that presidential motive was a sufficiently central issue that he had to make use of what Katyal had said.
After making his other points, Francisco finished with this:
“My final point has to do with my brother’s recognition that, if the President were to say tomorrow that he was sorry, all of this would go away. Well, the President has made crystal clear on September 25th that he had no intention of imposing the Muslim ban. He has made crystal clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country and he has praised Islam…This proclamation is about what it says it’s about. Foreign policy and national security.”
Six days later, Francisco sent the Court a brief letter, noting what he had said in his rebuttal. He had intended, he said, to refer to a statement President Trump had made on January 25, not September 25. His letter called the Court’s attention to a footnote in an earlier government filing in the case, citing a broadcast interview in which the President said, among other things, that the entry restrictions were not a Muslim ban.
The Solicitor General had no real choice about pointing out his error; his office has a special relationship with the Court, and that depends heavily upon the Justices’ ability to trust what government filings and government lawyers tell them.
But given the intensity of this lengthy and intense battle over the President’s immigration policies, and given the central role that the President’s statements have had in this battle, Francisco’s letter was bound to stir a contradictory filing.
It came from a 1 ½-page letter filed on Thursday, from a legal advocacy organization, the MacArthur Justice Center based in Washington, D.C. That group earlier had filed a friend-of-the-Court brief in the case, giving many details of the President’s statements.
Seeking “to clarify the factual record in this matter,” the letter disputed Francisco’s reference to what the President had said on January 25, and added that Francisco’s letter had not told the Court of statements made by Trump or by his aides after the hearing day and before Francisco had filed his letter. One of those statements by the President, the letter said, was a flat declaration: “There’s nothing to apologize for.”
It is impossible for anyone outside of the Court to know whether these developments will have any effect on what the Court will decide in the case of Hawaii v. Trump. One reason for the uncertainty is that outsiders have no idea whether the Court will even reach the challengers’ claim of religious discrimination. That is the only issue in the case that is constitutional in nature, and it is the only one to which Katyal had said the anti-Muslim comments should apply.
The Justices may well wind up ruling in the case only on the scope of presidential power under federal immigration laws. It could be that the Justices might declare that Congress had given the President nearly unqualified authority to restrict foreign nationals’ entry to this country, and that the actual text of the Trump order was what counted most, and that text made clear that national security was the controlling motive.
On the other hand, the Administration and the Solicitor General cannot be sure, until the decision comes out, whether the after-argument exchange of letters had worked in their favor, or against them by again highlighting the religious bias question.
A decision is expected by late June.