By Erik Larson and Christian Berthelsen / Bloomberg

Frontpage /

Just days after Donald Trump introduced his controversial travel ban in January, Rudy Giuliani bragged about the role he played in helping to craft it, telling Fox News that the president had called for a “Muslim ban” and asked him to find a way to do it legally.

Now, with judges across the country asking whether the restrictions violate the Constitution by targeting Muslims, Giuliani and his allies in the White House are seeking to distance the former New York City mayor from the order.

“I have not served on any Trump administration commission relating to the so-called Muslim ban executive orders,” Giuliani, 72, said Monday in an affidavit in a Manhattan federal court, in a case unrelated to the travel ban. “For clarity, I have not participated in writing any of the executive orders on that subject issued by the Trump administration.”

Rewind four months. On Jan. 29, two days after Trump signed an executive order temporarily barring travel from seven Muslim-majority countries, Giuliani appeared on Fox’s “Justice with Judge Jeanine” show to counter protesters who had swarmed U.S. airports and called the ban discriminatory.

“When he first announced it, he said ‘Muslim ban.’ He called me up, he said ‘put a commission together, show me the right way to do it legally.’ I put a commission together,” Giuliani said on the show.

Giuliani told Fox in January that the commission he formed included two Republican congressmen, Michael McCaul of Texas and Pete King of New York, as well as former U.S. Attorney General Michael Mukasey and “a whole group of other very expert lawyers on this.”

The former mayor then said the commission had decided to focus on the “danger” posed by a particular country, instead of religion, rooting the directive in “a factual basis, not a religious basis” and making it “perfectly legal, perfectly sensible.”

“That’s what the ban is based on,” he said.

Judges around the country have pointed to Giuliani’s public comments as evidence that Trump’s initial travel ban—and a revised version— illegally targeted Muslims. U.S. District Judge Leonie Brinkema in Alexandria, Va., who handled one of the first lawsuits over the travel ban, ruled in February that comments by Trump and others, including Giuliani’s comments on Fox, were relevant.

Courts have temporarily blocked the administration from enforcing a ban.

A spokeswoman for Giuliani declined to comment on the differences between comments he made to Fox and the new filing. White House officials didn’t immediately return a phone call seeking comment. McCaul has denied playing a role in the travel ban. Kevin Fogarty, a spokesman for King, said in an email that he “had no involvement” in crafting the executive order.

Giuliani’s work with the Trump administration is under scrutiny in at least two cases.

In a legal fight over the travel ban, the White House last week invoked executive privilege to argue that it doesn’t have to turn over a memorandum Giuliani purportedly wrote about it—or even to acknowledge that such a memo exists.

“If the ‘memorandum’ or ‘white paper’ sought in this request exists, it is not relevant to the legal issues presented in this case,” acting Assistant Attorney General Chad Readler said in court papers in Detroit. “The President has absolute immunity for civil liability for acts within his official responsibilities.”

The American Civil Liberties Union, which is arguing the case on behalf of a Muslim civil rights group, balked at the administration’s stance.

“If, as the administration claims, the Executive Order is not a Muslim Ban, then why is the administration refusing to turn over the Giuliani memo?” ACLU attorney Miriam Aukerman said a May 20 statement. “What is in that document that the government doesn’t want the court to see?”

Giuliani’s affidavit denying involvement in the travel ban came about as part of a case in New York in which he and Mukasey are serving as defense attorneys for Turkish businessman Reza Zarrab, who is accused by the U.S. of violating sanctions against Iran. The judge has asked Giuliani and Mukasey, who was also a Trump adviser, to reveal any potential conflicts of interest between them and their client including anything related to the “Muslim ban.”

Prosecutors raised concerns after both men sought high-level meetings with U.S. officials in an attempt to end the case against Zarrab.

Giuliani was “being careful” in wording the affidavit, said Stephen Wasby, professor emeritus at the State University of New York in Albany. But pointing to his Fox comments, “a good lawyer could embarrass him” if he were ever called to testify about his involvement in the travel ban, Wasby said.

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