Lawyers and judges discussed if the tweets should be taken into consideration as the court examines whether the ban was illegally motivated by anti-Muslim animus. Special attention was paid to the President's November 29 retweets of three inflammatory videos
from a British far right account rife with anti-Muslim content.
"What do we do," Judge James A. Wynn asked, when we have "multiple instances" when the President has tweeted about Muslims "before the election, during the election and just a week or so ago?"
The 13 judges on the panel of the 4th US Circuit Court of Appeals in Richmond, Virginia, previously ruled 10-3 against an earlier iteration of the ban. During Friday's animated arguments, several seemed to still have questions on whether the latest proclamation released in September would pass legal muster. But more than one of the judges took note of the fact that a majority of the Supreme Court recently allowed the entire ban to go into effect pending appeal, potentially signaling that the government might eventually prevail.
Travel ban 3.0 places varying levels of restrictions on foreign nationals from eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen.
The Supreme Court this week allowed the ban to take effect
while challenges proceed in lower courts.
In his questioning, Wynn asked how the judges should consider the tweets and whether the missives align with the challengers' arguments that the most recent proclamation is tainted with animus.
Judge Diana Gribbon Motz also seemed concerned that the President had continued to make statements that "some people regard to be anti-Muslim after the issuance of this order."
Judge Pamela Harris asked Hashim Mooppan, the administration lawyer, do you agree we can take judicial notice" of the tweets?
That line of questioning caused Judge Paul V. Niemeyer -- who voted in favor of the Trump administration in the earlier challenge -- to pounce and say that the tweets are not legally significant. He was joined by Judge Dennis Shedd, who said that while some could interpret some of the President's statements as "dripping" with discrimination, others could see them in a different light.
On other subjects, judges asked about the worldwide review the administration relied upon to justify the latest ban and the fact that the judges hadn't been able to see the underlying documents. Other judges wondered if the ban could be used as a "bargaining chip" to encourage countries to shore up their own security. Judge Barbara Keenan questioned if the ban could last indefinitely.
Cecilia Wang, the ACLU lawyer challenging the ban, argued that the taint of anti Muslim comments has "not dissipated" saying the President has repeated his comments.
Mooppan argued that unlike previous bans -- faulted for a lack of national security justification -- the most recent ban is different because it's based on detailed findings made after a worldwide review. And he said the President's statements hadn't dissuaded the Supreme Court from ruling in the government's favor.