Civil rights groups were stalled on Friday in their effort to force disclosure of a memo that President Trump has said helped him to change the approach on immigration restrictions so that his action could survive legal challenges. A federal judge in Detroit, citing the fact that the constitutional dispute over Trump’s executive order may soon be decided by the Supreme Court in a separate case, put on hold a similar case.
U.S. District Judge Victoria A. Roberts, in an eight-page ruling, granted the Trump Administration’s request to postpone actions in the Detroit case until after the Supreme Court has resolved the Administration’s appeal in a case that originated in Maryland. One of the most significant disputes that will not now get resolved, for several months at least and maybe never, is over access to a legal memo prepared by former New York City mayor Rudy Giuliani.
It was that memo, according to President Trump and Giuliani, that persuaded Trump once he became president to shift his executive order away from a focus on denying entry into the U.S. of Muslims because of their religion to a ban on entry based on the nation from which immigrants were coming, in order to try to head off a claim by critics that it was a form of unconstitutional discrimination based on faith.
Like challengers to the Trump order in cases across the country, those who sued in the Detroit case have argued that the change suggested by Giuliani demonstrates that the real motive for the restrictions was to target Muslims, and that the changed approach was only a pretext that did not change the president’s real motive.
That argument has, in fact, been successful in getting a number of federal courts to block enforcement of the executive order as a “Muslim ban” that violates the freedom of religion guaranteed by the Constitution’s First Amendment. In doing so, those courts have relied upon descriptions of the Giuliani memo, but have not had the actual memo itself before them.
Its text remains undisclosed, and its actual whereabouts — in Trump’s records, in other government records, in Giuliani’s files, or in the records of the Trump for President campaign — are unknown to the public. The campaign organization may have it because Giuliani served as an adviser and political surrogate for Trump during the campaign last year.
The challengers in the Detroit case were the first to try to get access to the memo itself for use in their case against the executive order. They demanded that it be turned over to them as they prepared to move the lawsuit forward, and they asked Judge Roberts to order its disclosure.
The judge did so, but the document has not yet surfaced, and the president and his lawyers have been arguing that they should not have to hand it over until after the judge has ruled on the Trump legal team’s basic motion to have the challengers’ case dismissed. The judge has not yet ruled on that motion, but had decided to hold a hearing on it next Tuesday.
After Justice Department lawyers took the immigration restrictions case to the Supreme Court after the restriction was blocked last month by the U.S. Court of Appeals for the Fourth Circuit, the Trump legal team asked Judge Roberts to stay all of the case before her until after the Justices had completed action.
In agreeing to do so on Friday, Judge Roberts said the Supreme Court may clarify the legal standards that are to be used in judging the legality of the immigration order, including providing an answer to whether the challengers will be allowed to use Trump campaign materials or the memo prepared by Giuliani to make their case. The guidance coming from the Justices, the judge wrote, may resolve a number of issues at stake in the Detroit proceedings, so those should not go forward in the meantime. The judge also cancelled the hearing she had set for next week..
The case can not move forward until two weeks after the Supreme Court either denies review of the government appeal, or takes on the case and decides it in a final way, the judge said.
In the meantime, Judge Roberts ordered Trump and other officials not to destroy the Giuliani memo or any other documents being demanded by the challengers, and told the challengers that they could make a similar demand on the Trump campaign organization. The lawyers were ordered to file a joint status report one week after the Justices take a completed action.
The challengers may have the option of asking a higher court to lift the stay, but such a pre-trial delay order at a very early stage in a case in a trial court is not likely to be second-guessing by a higher court.