Donald Trump's attorney argues that nothing he said as a presidential candidate should matter

'We shouldn’t start... psychoanalysing what people meant on the campaign trail,' says Jeffrey Wall

Emily Shugerman
New York
Monday 15 May 2017 20:35 BST
Jeffrey Wall argues in favour of Donald Trump's travel ban in the 9th Circuit Court of Appeals
Jeffrey Wall argues in favour of Donald Trump's travel ban in the 9th Circuit Court of Appeals (C-SPAN)

Acting Solicitor General Jeffrey Wall has claimed Donald Trump’s campaign statements were not made in an “official capacity”, and don't say anything about the "official objective of government".

Mr Wall made the comments while arguing for the repeal of a stay on Mr Trump’s travel ban, which bars entry from six Muslim-majority countries.

“People say things on the campaign trail and then they take an oath to uphold the constitution, they form an administration, and they consult with them on the policies they develop,” Mr Wall said. “And we shouldn’t start down the road of psychoanalysing what people meant on the campaign trail.”

Much of the controversy around the travel ban – and many of the judges’ question on Monday – centred around Mr Trump’s rhetoric. On the campaign trail, Mr Trump famously called for a “complete and total shutdown on Muslims entering the United States”. That phrase remained on his campaign website until last week, when a reporter brought it up at a televised press conference.

Under the Establishment Clause, any executive order that creates a disfavoured religion would be unconstitutional. That's why Hawaii-based District Judge Derrick Watson issued a preliminary injunction against the ban shortly after it was issued.

Judges Michael Hawkins, Ronald Gould, and Richard Paez of the 9th Circuit Court of Appeals are hearing arguments for and against the injunction this week.

Arguing against he injunction on Monday, Mr Wall claimed that Mr Trump has not made any statements post-inauguration that could prove “bad faith” against Muslims. His pre-inauguration statements, Mr Wall added, were simply comments by “a private citizen running for office”.

“Over time the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter and sponsor them,” the acting solicitor general argued. “And over time he and his advisers clarified that what he was focused on were groups like Isis and Al-Qaeda.”

Mr Wall, however, could not point a specific moment in which Mr Trump has disavowed his campaign statements.

Asked on Monday if Mr Trump would disavow his past statements, White House Press Secretary Sean Spicer said simply: "The executive order is fully lawful and will be upheld".

Neal Katyal, arguing against the travel ban on behalf of Hawaii, said Mr Trump had made several comments post-inauguration that made it clear his “travel ban” was actually a ban on Muslims.

He pointed to the signing of the order, during which Mr Trump read the formal title – Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States – and added: “You know what that means”.

But Mr Katyal largely cast aside the distinction between Mr Trump’s pre- and post-inauguration statements. The real test, he argued, was how this ban would look to an outside observer.

Would a ban on entry by members of six Muslim-majority countries, signed by a man with a history of making anti-Muslim statements, appear to be a ban on Muslims?

In this case, Mr Katyal said, “The history is overwhelming”.

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