Jurisprudence

The Solicitor General Is Still Misleading the Supreme Court

Even after issuing a corrected statement, Noel Francisco’s description of Trump’s Muslim ban stance is wrong.

Noel Francisco.
Noel Francisco.
Photo illustration by Slate. Photo by the United States Department of Justice.

It’s relatively rare to see the solicitor general, after arguing a case before the Supreme Court, submit a letter to the court correcting himself. It’s even rarer when the letter reveals that he still hasn’t corrected his error.

Yet that’s what happened on Tuesday. Solicitor General Noel Francisco filed with the court a short letter purporting to rectify an error he made the previous Wednesday in his closing argument in Trump v. Hawaii, the challenge to President Donald Trump’s travel ban. Here’s the letter: “At oral argument in this matter last week, I referred during my rebuttal to a statement by the President ‘on September 25.’  Transcript 81:17-19.  I intended to refer to the President’s statement on January 25, 2017, that is cited in the government’s reply brief at page 28, note 8.”

If the solicitor general really thinks that his error was about a mistaken date, then he’s still being obtuse as to the actual positions of his boss, President Trump—and to why his closing argument was, as I and others have argued, so dangerously misleading.

The statement in question was no trivial matter in the case. Rather, it was the solicitor general’s climactic closing argument. And it purported to respond to his opposing counsel’s claim that the president had never disavowed the anti-Muslim animus that the challengers argue renders the travel ban unconstitutional under the First Amendment’s Establishment Clause. The solicitor general said: “My final point has to do with my—my brother’s recognition that, if the President were to say tomorrow that he was sorry, all of this would go away. Well, the President made crystal-clear on September 25 that he had no intention of imposing the Muslim ban.”

Even having corrected the date and clarified what he was referencing, the rest of Francisco’s argument is still misleading the court: “Well, the President made crystal-clear … that he had no intention of imposing the Muslim ban.”

Where the solicitor general was mistaken was not in confusing his months of the year but in vouching to the justices that President Trump has ever made “crystal-clear” that his travel ban isn’t the Muslim ban that Trump promised as a candidate and has repeatedly taken credit for delivering on as president.

Yes, when asked, on Jan. 25, 2017, whether his then-forthcoming first attempt at a travel ban was “the Muslim ban,” Trump replied, “We’re talking about—no, it’s not the Muslim ban. But it’s countries that have tremendous terror. It’s countries that we’re going to be spelling out in a little while in the same speech. And it’s countries that people are going to come in and cause tremendous problems.” It’s now clear at least what the solicitor general was referencing. But, when one remembers everything that Trump has said since, it’s preposterous to claim that this statement made “crystal-clear” that his travel ban—in all three of its incarnations—isn’t intended as a Muslim ban.

First, Trump has told us why he initially downplayed the extent that the ban is seeking to at least partially accomplish his stated goal. That came, for example, in September 2017, when Trump tweeted: “The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!” So we know what Trump meant in January: He wasn’t delivering on precisely “the Muslim ban” he wanted, but instead a Muslim ban whose somewhat narrowed scope he regretted. That, of course, doesn’t save it from its constitutional defect—though it does leave the ban ripe for expansion if the court were to uphold it.

It’s also important to remember that Trump told us what pretext he was going to use during the campaign. When asked in July 2016 if he was rolling back his Muslim ban position by changing its language, he denied that was the case using nearly the same language he later did in his Jan. 25 statement. “I actually don’t think it’s a rollback,” Trump told NBC’s Chuck Todd. “In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.” “Remember this” indeed! In fact, during the second presidential debate, Trump explicitly described his pretext when asked if it was correct that the Muslim ban was no longer his position. “The Muslim ban is something that in some form has morphed into extreme vetting from certain areas of the world,” Trump said. When pressed to say whether his Muslim ban position still stood, he would not. “It’s called extreme vetting,” he said. Over the course of his two-minute response, he refused to answer the yes-or-no question of whether a Muslim ban was still his policy.

Second, Trump’s White House has made very clear, after Trump’s January 2017 statement, that his travel ban is very much a Muslim ban. Trump’s own campaign website continued to make clear that the ban’s purpose was “preventing Muslim immigration” until just before a key court argument in an earlier challenge to the ban, when it was abruptly removed. And, as the justices were reminded at argument last Wednesday, after the third travel ban’s issuance, the deputy press secretary was asked why Trump retweeted three anti-Muslim videos posted to Twitter by a far-right British politician. Here’s Raj Shah’s response when asked whether “President Trump think[s] Muslims are a threat to the U.S.”: “The president has addressed these issues with the travel order that he issued earlier this year, and the companion proclamation.” Those tweeted anti-Muslim videos—later shown to be false and misleading in key respects—had nothing to do with national security. They had everything to do with Islamophobia, pure and simple. This was Trump’s own White House saying that his travel ban addressed his view of exactly what the questioner had asked about: “Muslims.”

Third and most incredibly, Trump and his White House have, in the week since arguments at the court, repudiated the solicitor general’s claim to the justices. Hours after the argument, a reporter noted to White House press secretary Sarah Huckabee Sanders that “the president has never actually disavowed” his campaign proposal of a Muslim ban and asked, “Does the White House disavow that campaign proposal, or does it stand by it?” Here was a chance to be nothing short of “crystal-clear.” Sanders was anything but. She refused to answer the question directly and came nowhere near offering a disavowal. It turns out that she knows her boss well: When asked Monday whether he’d apologize for his campaign rhetoric promising a Muslim ban if it might help his odds at the court, Trump responded that “there’s no reason to apologize.”

Of course Trump doesn’t see a reason to apologize. Once a Muslim ban, still a Muslim ban. That’s what’s crystal-clear. And that’s where the solicitor general misled the court.