When the case eventually goes to a trial court, Washington State plans extensive discovery into the president’s state of mind when the order was issued, as well as the state of mind of key presidential advisers. Washington State lawyers told the 9th Circuit they intend to find out what was “said in private” about the executive order, which suggests state lawyers will seek to depose and obtain documents from the president and his inner circle.
Washington State lawyers explained their intent in oral argument before the 9th Circuit February 7. When the subject turned to religious discrimination, one judge, Richard Clifton — the only judge on the three-judge panel appointed by a Republican — expressed skepticism that the order was based in religious animus. Noting that the Trump order affected less than 15 percent of the world’s Muslim population, Clifton said to Washington State Solicitor General Noah Purcell, “I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.”
“We do not need to prove that this order harms only Muslims, or that it harms every Muslim,” Purcell responded. “We just need to prove that it was motivated in part by a desire to harm Muslims.”…
What could discovery entail? Certainly Washington State lawyers would want to question the president and staff around him, both in the White House and in the campaign. The lawyers would also seek a broad range of documents.
The question is whether that could ever happen.
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