A federal judge in Michigan is allowing opponents of President Donald Trump’s travel ban executive orders to proceed with legal demands for details on how those policies were conceived.
The order Friday from Detroit-based U.S. District Court Judge Victoria Roberts appears to be the first green-lighting such discovery.
“It is appropriate to allow the discovery process to begin in the limited nature that Plaintiffs suggest,” the judge wrote in a suit brought by the American Civil Liberties Union on behalf of the Dearborn-based Arab American Civil Rights League and several individuals.
One document plaintiffs in the case are seeking is a proposal reportedly drafted by former New York Mayor Rudy Giuliani to dodge legal obstacles while allowing Trump to carry out the Muslim ban he promised during the campaign.
In travel ban lawsuits around the country, Justice Department attorneys have opposed legally enforced fact gathering through document requests, depositions and the like. They’ve warned that process will be complex and burdensome and is certain to generate claims of executive privilege.
Roberts’ order left the door open for such objections from the government, but she indicated she’s skeptical of those arguments. In particular, she said she can’t see how Trump administration lawyers can simultaneously claim his statements from the transition or the campaign are irrelevant to the legality of his order and that actions from that era are protected by executive privilege.
“Defendants cannot repeatedly make that argument, only later to assert an executive privilege objection to discovery regarding information related to pre-inauguration Trump,” she wrote. “The Court believes Defendants exaggerate the number of legitimate objections they will have and the complexity of the issues those objections will raise.”
A Justice Department spokesman declined to comment on the order.
Some limited discovery has been permitted in other travel ban-related litigation, but not focused on the origins of the policy. A judge in Brooklyn required the government to produce a list of individuals whose travels were impacted by the first version of the order, which Trump issued seven days after taking office.
After courts largely blocked that directive, the White House retooled it, narrowing from seven to six the list of majority-Muslim countries whose citizens would be denied visas to the U.S. The revised order also exempted existing visa and green card holders and nixed a preference for religious minorities which Trump suggested was intended to benefit Christians. The new order preserves a 120-day suspension on refugee admissions from around the globe.
Judges in Maryland and Hawaii blocked aspects of the new order worldwide just before it was scheduled to take effect in March. The 4th Circuit heard arguments earlier this week on the Trump administration’s appeal of the Maryland injunction. The 9th Circuit will take up the Hawaii injunction on Monday.