Fox News judicial analyst Andrew Napolitano defended the second version of President Donald Trump’s proposed Muslim ban executive order by ignoring comments by a White House official cited by a U.S. District Court to rule against it, claiming that an upcoming appeals court hearing will only consider Trump’s campaign statements against Muslims and not incriminating statements Trump and his team have made since he was inaugurated. During a February 21 appearance on Fox News, senior presidential adviser Stephen Miller said that the second version of the executive order would be designed to “have the same basic policy outcome” as the first order. The original ban was rejected by the courts, citing comments made Trump and his team noting that the ban’s purpose was to discriminate against Muslims.
The Ninth Circuit Court of Appeals’ ruling on the first Muslim ban also mades clear that despite Napolitano’s claims to the contrary, Trump’s comments from his presidential campaign could be considered by courts trying to determine the president’s intent. From the May 15 edition of Fox News’ America’s Newsroom:
SHANNON BREAM (CO-HOST): President Trump's revised travel ban taking center stage again today. A three-judge panel in Seattle -- this is in the Ninth Circuit, they’re all Clinton appointees -- are going to decide if the president's campaign comments are enough evidence to strike down that order. Mr. Trump suggesting during the campaign that he would ban Muslims from the U.S. until the terror threat was diffused. Judge Andrew Napolitano is here. He’s our Fox News senior judicial analyst. Good morning to you, Judge.
ANDREW NAPOLITANO: Good morning, Shannon. So the issue is, can the words of candidate Trump be used to describe, or in this case even diminish, the behavior of President Trump? Can the court use the words of the candidate against the president when he’s no longer a candidate and is now in office?
BREAM: Yeah, and the order just says what the order says.
NAPOLITANO: Correct. Correct. Obviously he used words that can be characterized as incendiary about Muslims during the campaign. He claims that those were words stated in the heat of the campaign. And we all know it's not an uncommon phenomenon for people to say things in a campaign to gain votes at the moment, or to win the moment, or capture the moment that they don't necessarily mean once they are in office. So on its face, meaning if you just read the order, it’s well grounded in the Constitution and it specifically addresses a statute that specifically authorizes him to do it. But if it was done for a religious purpose, it’s nearly impossible for the Justice Department to justify that order.
BREAM: Yeah, and they say look at the face of it how it's written, what it says. They actually took out some things. They changed some language that took away priority for religious minorities and other kinds of things that could have added fuel to the argument. But it sounds like a number of these judges are doing what you and I have talked about so many times. They're only going to look back at those public statements and using that to override this. Now, we have our thoughts about this three-judge panel who is going to hear this today and where they may go. The fact is that people need to understand that all of these trials could and all these different hearings and appeals could tie this thing up until the end of the president's term
NAPOLITANO: So if Barack Obama had signed this order, it would be found constitutional because there is no pre-presidential language that could be suggested as having a religious bias or a religious motive. But because Donald Trump signed the order, in fact one of the judicial opinions even cited language used by his supporters at these rallies. It wasn't even his words, because he signed the order, because he said these things before he was president, it’s got an entirely different judicial focus.