Federal Court Orders Trump to Produce Giuliani Memo, Other Documents on How to Make Muslim Ban Legal

May 12, 2017

In response to a recent joint lawsuit filed by the Arab American Civil Rights League, the ACLU of Michigan and others, a federal judge on Thursday ordered President Donald Trump to turn over key documents related to his Executive Order banning travel from six Muslim majority countries and freezing the refugee resettlement program. 

Read the Order.

Among other things, the order—which applies to pre-election communications among high-profile Trump campaign advisors about his proposed “Muslim ban”—specifically called for the release of a memo from a commission created by Rudolph Giuliani, whom Trump tasked with implementing the ban. Giuliani has publicly said that Trump wanted the commission to find the “right way to do it legally.” That commission reportedly included disgraced former National Security Advisor Gen. Michael Flynn.

The order, issued by Judge Victoria Roberts of the Eastern District in Michigan, ordered the memo released by May 19, with the remaining documents due by June 2.

Read the Document Requests.

“We believe these documents will show exactly how the Muslim Ban that Donald Trump called for on the campaign trail turned into the Executive Order he issued a week after taking office,” said Miriam Aukerman, senior staff attorney at the American Civil Liberties Union of Michigan. “If the administration now still refuses to turn over these papers, the question will be: What is it trying to hide?”

The judge’s order also applies to transition period communications involving congressional staff members who reportedly were involved in drafting the Executive Order.

The government has not yet said whether it will continue to oppose release of the documents, although it previously argued that the documents were covered by executive privilege and therefore exempt from disclosure. The court, however, noted that the government has repeatedly said that Candidate Trump’s anti-Muslim statements should not be considered in evaluating the constitutionality of the Executive Order because he was not yet President. “Defendants cannot repeatedly make that argument, only later to assert an executive privilege objection to discovery regarding information related to pre-inauguration Trump,” wrote Judge Roberts.

Giuliani himself has explicitly stated that, when calling for the commission, then-candidate Trump was seeking a way to keep Muslims out of the country. “So when he first announced it, he said ‘Muslim ban,’” said Giuliani in a TV interview. “He called me up. He said ‘Put a commission together. Show me the right way to do it legally.’” In a follow-up interview, Giuliani credited the commission with the evolution of the ban.

After the ban was challenged in courts across the country, the Trump Administration has denied that the Executive Order equates to a Muslim ban.

“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 (ACRL). “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.” 

Read the Complaint.

In addition to the ACRL and the ACLU, other plaintiffs in the case include the Arab American Chamber of Commerce, the Arab American and Chaldean Council, the Arab American Studies Association, and nine individuals injured by the ban. In addition to attorneys with ACRL and ACLU of Michigan, the plaintiffs in the case are represented by a team of attorneys from the law firm of Covington & Burling LLP led by Jason Raofield, and University of Michigan Law School professors Sam Bagenstos and Margo Schlanger.

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