A federal judge in Detroit agreed Friday to put a halt to court proceedings that sought the release of a legal memorandum believed to have been created by Rudy Giuliani to help justify President Donald Trump’s controversial travel ban.
The former New York City mayor made a splash in late January — a day after an early version of the travel order was signed — when he said on Fox News that the president had asked him before his inauguration to assemble a commission that would look for ways to “legally” institute a travel ban targeting Muslims.
Since then, a number of courts have cited Giuliani’s comments as evidence that the president’s executive orders to institute travel restrictions were fueled by anti-Muslim sentiment, which would violate the Constitution’s establishment clause on religious bias.
The most recent ruling came from the federal appeals court in Richmond, Virginia, which prevented Trump’s second order, a ban on travel to the U.S. by citizens of six Muslim-majority countries, from going into effect and said that the executive order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
“Giuliani was quite clear that the President wanted to enact a ‘Muslim ban’ and had assembled a commission to study how to create a ‘Muslim ban’ legally,” wrote one of the 4th Circuit judges who agreed that the travel restrictions, which also included refugees, shouldn’t be reinstated.
Because that ruling is now pending before the Supreme Court and the justices could in time determine the bottom-line legality of the executive order, U.S. District Judge Victoria Roberts concluded that it wouldn’t make much sense to let the challengers in the Detroit case get ahold of the Giuliani memo.
“Requiring the parties and the Court to devote time and resources to resolve these matters … would not be economical, because the Supreme Court’s decision will be significantly relevant to, and possibly control, the Court’s consideration of issues raised in this suit,” Roberts wrote in an order putting a freeze on the proceedings.
Roberts had already ordered the Department of Justice to hand over the so-called “Muslim ban” memo last month. But government lawyers resisted her order, citing executive privilege, presidential immunity and other defenses that lawyers for the travel ban challengers characterized as no more than “a laundry list of objections.”
In a nod to the plaintiffs, which include the Arab American Civil Rights League, the judge did agree to revisit her order in the event that the Supreme Court declines to hear the appeal of the 4th Circuit’s ruling.
And she directed the Trump administration to preserve any relevant documents, official or not, predating Trump’s inauguration, which presumably would cover the elusive Giuliani memo. In court filings, government lawyers have declined to say if the memo even exists.