On Wednesday night, U.S. District Judge Derrick Watson of Honolulu, Hawaii successfully halted President Donald Trump's second executive order banning travel to the US from residents of six Muslim-majority nations. After Trump's previous ban was ruled illegal and shut down by multiple federal courts in February, the White House spent weeks crafting a replacement designed to be unsinkable. Then, mere hours before it was to be put into effect, it was sunk.
Judge Watson's decision immediately sent shockwaves through the worlds of politics and the media, infuriating the president and causing his supporters to start a movement to boycott Hawaii. But ironically, it seems that it was the words of some of Trump's closest confidantes that motivated Watson's ruling.
In his decision, which is available in full online, he made the same argument that judges had used to block the first travel ban: that it had no clear purpose except to prevent Muslims from entering the country, which is unconstitutional. He wrote:
The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.
The second ban tried to avoid this issue by making concessions to Muslims: removing Iraq from the list of targeted countries, and eliminating a provision that exempted Christians. But what the Trump administration didn't count on is that judges could use the public statements of White House advisers as evidence, and there's no controlling what those people say.
Judge Watson's decision states:
The day after signing the first Executive Order [No.13,769], President Trump’s advisor, Rudolph Giuliani, explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
Later on, Watson adds:
On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
In those statements, Giuliani and Miller totally undermined the Trump administration's careful plan to establish that the new Muslim ban was, unlike its predecessor, not actually a Muslim ban. Giuliani even used the phrase "Muslim ban." And because their statements are legally admissible, the White House faces an uphill battle to ever get any version of their executive order through the courts.
But hey, at least Kellyanne Conway didn't say anything this time.