Source:
Washington Post Throughout Donald Trumps campaign and now into the first weeks of his presidency, critics suggested that he cool his incendiary rhetoric, that his words matter. His defenders responded that, as Corey Lewandowski said, he was being taken too literally. Some, like Vice President Pence, wrote it off to his colorful style. Trump himself recently explained that his rhetoric about Muslims is popular, winning him standing ovations."
* * *
The states of Washington and Minnesota, which sued to block Trumps order, are citing the presidents inflammatory rhetoric as evidence that the governments claims its not a ban and not aimed at Muslims are shams.
In court papers, Washington and Minnesotas attorneys general have pulled out quotes from speeches, news conferences and interviews as evidence that an executive order the administration argues is neutral was really motivated by animus toward Muslims and a desire to harm a particular group.
His words, the two states say in their brief, show that the President acted in bad faith in an effort to target Muslims. The courts, they say, have both the right and duty to examine Trumps true motives.
Read more:
https://www.washingtonpost.com/news/morning-mix/wp/2017/02/07/words-matter-trumps-loose-talk-about-muslims-gets-weaponized-in-court-against-travel-ban/?utm_term=.9adcea272856
The DOJ is essentially arguing that President Trump is publicly lying and should be ignored. Instead, the court should accept the pretext given by the federal government for targeting Muslims, er engaging in extremer vetting.
If the DOJ wins, then all a government needs to do is offer a non-discriminatory pretext that the court must accept regardless of actual evidence of animus.