ANDREW NAPOLITANO: What we are waiting for and which could come today or tomorrow -- since the president is addressing the nation soon, I think he is probably going to speak to us before this comes out, just my guess -- is the replacement executive order for the one he issued last month, which has been enjoined by several courts. In order to prepare the replacement order, the Justice Department lawyers have taken three judicial opinions -- Brooklyn, Alexandria, Virginia -- four judicial opinions, and the two in Seattle -- and made a checklist of judicial objections.
SHANNON BREAM (CO-HOST): We want to get past all these things.
NAPOLITNO: Correct. And are trying to make this as lawyers say, or trial judges not wanting to be interfered with by appellate courts like to say: bulletproof. We're going to accommodate the concerns of the judiciary so they can't do the same thing to the new order that they did to the old.
BREAM: Well it's interesting because you and I talked about that ruling by the federal judge in Alexandria, Virginia, last week where she had taken into account public interviews and statements by the president, by Rudy Giuliani. So even if they draft something new, would a judge like that be able to point back and say, “regardless of how you've drafted this, I look toward your animus, your motivation in putting this together?”
NAPOLITANO: It is very, very troubling in my view for a judge to take words from candidate Trump and use them against President Trump. I mean, simply that was then, this is now. You say things in order to get elected that you don't want to exactly be held to once you are in office. His stock and trade is saying, “I'm going to do what I said I'm going to do.” But now that he is in office and realizes there are legal constraints to motivation, he is going to have to give a different basis. State it differently. The judge in Alexandria called it a Muslim ban and based that on language Donald Trump and Rudy Giuliani used during the campaign. The Justice Department must demonstrate it is not a Muslim ban, it is a security measure. It may fall disproportionately on Muslims but it is not intended to harm the religion.
