(CNN) Federal appeals court judges appeared divided Monday after hearing the Trump administration's defense of its travel ban, with one saying President Donald Trump never disavowed his campaign statements on keeping Muslims out of the country and another asking if the ban would still be illegitimate if Trump hadn't won the election.
"He's never repudiated what he said about the Muslim ban," Judge Robert B. King said, underscoring a key rationale for a Maryland federal district court's halt to the ban: That it is intended, as evidenced by Trump's campaign statements, to target Muslims and is therefore discriminatory.
But Judge Paul V. Niemeyer questioned the plaintiffs' attorney about his motive for opposing the ban. "If some other candidate had won the election and issued this order, I gather you would have no problem with that," said Niemeyer, who was appointed by former President George H.W. Bush.
The nearly two-hour hearing before the 4th Circuit Court of Appeals came about two months after a federal judge in Maryland imposed a nationwide halt to the core portion of the President's revised executive order that sought to bar foreign nationals from six majority-Muslim countries from entering the US for 90 days. District Court Judge Theodore Chuang concluded, largely drawing on Trump's past statements, that the travel ban likely violates the Constitution by disfavoring Muslims, and the the Justice Department appealed that decision in March.
Jeffrey Wall, the acting solicitor general, argued Monday that Trump's statements about Muslims prior to taking office should not be considered evidence of discrimination. Wall emphasized that the revised travel ban was written after the President listened to judges' concerns that the original executive order discriminated against Muslims.
"(Trump) made it clear he was not talking about Muslims all over the world, that's why it's not a Muslim ban," Wall told judges.
But Omar Jadwat, a senior attorney for the American Civil Liberties Union Immigrants' Rights Project, argued the ban does not serve a valid national security purpose.
"There's a logical problem with the order," Jadwat said, noting the countries selected by Trump are "not the list of countries you come up" with when outlining those that pose the biggest threats to the United States.
He called the ban "completely unprecedented," saying it has caused "extraordinary injury" to the plaintiffs, whose families cannot visit them in the United States.
The judges used the first half hour of the hearing to question Wall on how Trump's second order changed from the first, which critics have labeled a clear Muslim ban.
King, who was appointed by President Bill Clinton, continued in that vein, pointing out that, as of Monday, the "District Court here found the [ban] is on his campaign website."
The controversial plan was removed from Trump's campaign website Monday, shortly after White House press secretary Sean Spicer told reporters that he was unaware that the plan was still online.
The plan has been used against the administration's attempt to suspend travel to seven -- then six -- Muslim-majority countries and halt the admission of Syrian refugees into the United States.
Chuang, the district court judge, said in March that despite the Trump administration's assertion that the order was a travel ban, not a Muslim ban, "the history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban."
On Monday, Wall emphasized that the President made his campaign vow to ban Muslims "before he took the oath."
"It is an archived press statement from 16 months ago," Wall said when asked. "We took an oath and formed a government."
The judges also asked Wall if the administration has been able to review the vetting procedures since Trump issued the first travel ban in late January.
"What we have been doing since January 27 is just litigating this order," Wall replied.
Jadwat, meanwhile, struggled to answer the judges' questions about what exactly he claimed is wrong with the text of the travel ban. The judges also asked the ACLU attorney whether his organization would challenge the same travel ban order if someone besides Trump signed it.
"What if [Trump] said he was sorry every day for a year?" Judge Dennis Shedd asked.
"Sorry is not enough," Jadwat said.
Following the hearing, the ACLU held a press conference outside the courthouse featuring a handful of speakers who oppose the ban.
"The Muslim and refugee ban is a clear example of politics of hate and xenophobia," said Marielena Hincapié, the executive director of the National Immigration Law Center. "This is part of a larger agenda that this administration has against people of color, Muslims, trans community and many others."
Normally, such an appeal of a district court's decision would be heard by a randomly assigned panel of three judges, and the losing party may ask for it to be reheard by the full court.
Yet in this case, the judges on the 4th Circuit decided it should be heard by the full court -- otherwise known as "en banc" -- in the first instance. Ten of the 15 active judges on the court are either Clinton or Obama appointees. A source familiar with the case told CNN that Judge J. Harvie Wilkinson III -- a Reagan appointee and one of the most highly respected judges on the court -- recused himself from the case because Wall is his son-in-law as well as his former law clerk. Judge Allyson Duncan, who was appointed by former President George W. Bush, also stepped aside. That means 10 of the 13 judges who heard Monday's case were appointed by Democrats.
What's at stake?
This is not the Trump administration's first legal showdown over the President's travel ban.
The original executive order was swiftly blocked nationwide by a federal judge in Seattle, the 9th US Circuit Court of Appeals refused to reinstate it, and then the administration spent over a month rewriting it, exempting several categories of foreign travelers and taking care to make no express mention of religion -- all in the hopes of avoiding legal scrutiny for a second time around.
Yet statements from Trump and his advisers, especially when combined with his continued inclusion of a 90-day ban on foreign nationals from six Muslim-majority countries in the revised executive order, have proved -- at least for now insurmountable in court.
The suit in front of the 4th Circuit on Monday was brought by several refugee rights organizations, along with individual plaintiffs who claim the executive order, if allowed to go into effect, would separate them from loved ones abroad. They also claim that the "anti-Muslim animus" underlying the second executive order is readily apparent from the litany of public statements Trump made before and after the presidential campaign.
Chuang disagreed with the administration's argument that Trump's campaign statements shouldn't count in lawsuits, noting that Trump's campaign website still contained a statement on "preventing Muslim immigration" at the time.
Chuang went on to explain that the consideration of such evidence by a federal court is a matter of "common sense," as such "explicit statements of a religious purpose are 'readily discoverable facts' that allow the court to identify the purpose of this government action without resort to 'judicial psychoanalysis.'"
"Simply because a decisionmaker made the statements during a campaign does not wipe them from the 'reasonable memory' of a 'reasonable observer,'" Chuang added.
As a result, the crux of the issue on appeal is likely whether the 4th Circuit agrees it is permissible to look outside of the four corners of the executive order to examine its purpose.
"We believe that it makes little sense as a matter of law and logic to ignore the President's own statements telling the country what the purpose of this (executive order) is," explained Lee Gelernt, one of the plaintiffs' attorneys and deputy director of the American Civil Liberties Union's Immigrants' Rights Project, in an interview with CNN. "This is not a situation where we have to psychoanalyze the President. The President has made clear why he's doing this." The Justice Department declined to comment beyond the legal briefs in the pending case.
If the Trump administration wins in the 4th Circuit, will the ban immediately go back into effect?
Short answer: no.
A second federal judge in Hawaii, US District Court Judge Derrick Watson, issued a nationwide ruling that halted the 90-day travel ban on the same grounds as Chuang, finding it likely violates the Establishment Clause of the Constitution by disfavoring Muslims. Yet Watson's decision was slightly broader in scope and paused Trump's 120-day ban on refugee admissions as well.
So if the Justice Department prevails in the 4th Circuit, the case will then go back to the district court judge for further litigation and the key portions of the revised executive order will stay on hold as long as Watson's nationwide decision remains in effect. The Trump administration's challenge to Watson's ruling will be heard by the 9th Circuit Court of Appeals in Seattle next Monday.
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