Trump Administration lawyers, in a court filing made public Friday, argued that no federal court can order the president to turn over documents for use in a lawsuit, even if the demand involves papers created during the election campaign for the presidency. That claim was made as those attorneys continued to try to fend off a judge’s order to turn over a campaign-season memo that helped Trump justify his presidential order aimed at barring immigrants from Muslim-majority nations.
The memo, demanded by challengers to the Trump executive order to support their case, is said to have been prepared for Trump last year by former New York City mayor Rudy Giuliani, suggesting that Trump justify his planned “Muslim ban” as one aimed at countries, not at religion. (Federal courts have several times blocked the executive order as a move to discriminate against Muslims based on their faith.)
The 34-page legal memo by the Trump legal team was filed in a federal District Court in Detroit, where a lawsuit filed by civil rights groups against Trump is pending. It was submitted to the court a week ago, but never appeared on that court’s public docket. It was included Friday as an exhibit as part of a new request by the challengers to the judge to force Trump and his aides to turn over the Giuliani document.
The civil rights groups, contending that Trump’s legal team has engaged in “a shell game” to try to avoid turning over documents, asked Judge Victoria A. Roberts to order the President and his aides to make a search for the Giuliani memo within five days, and then turn it over to the judge for study in secret to determine if it can be hands over to the challengers’ lawyers for use in the lawsuit.
If the legal team claims they cannot locate the memo, the motion said, a sworn statement must be submitted on the steps they took to try to turn it up. If a claim of legal immunity to the demand (based on “executive privilege”) is going to be made, the motion sought an order to require the filing of a legal brief spelling out that claim in detail, within ten days.
Because the Trump legal team had contended in its week-ago filing that the Giuliani memo — “if it exists” — might be in the hands of Trump’s presidential campaign organization, the civil rights groups asked that the judge send campaign aides a copy of the order on the turnover of the memo, and require the campaign to offer any legal defense they have against handing it over.
The legal response by the Trump team asserted a lengthy list of explanations why they had not turned over the Giuliani memo last Friday – the deadline that had been set by the judge. They expressed doubts whether the memo existed, questioned the description the civil rights group had given for it, argued that the challengers had not shown that the memo was now in government files, and contended that the judge should not act further to force turnover of documents until later, when the President’s legal advisers could spell out more fully their claims of official privacy for any such papers.
But the broadest claim of privilege made by that legal filing was that a president cannot be ordered directly to obey a court order in a civil lawsuit, because of constitutional separation-of-powers protection and the need to protect a president’s ability to perform the duties of the office. Since no court “injunction” can be issued against a president, the document said, a court has no authority to compel the disclosure in a civil case of any documents that the president may have.
The filing also indicated that, while the proper place for a court to seek the Giuliani memo would be from the presidential campaign organization, the filing strongly implied that the privilege claim would apply to that paper even if it was created during the campaign, and thus was not itself a presidential document.
Judge Roberts is expected to rule promptly on what the next steps will be in the dispute over access to documents that might bear on the claim that the presidential executive order was actually intended to be a “Muslim ban.”
