Discrimination is not easy to prove. It starts with an adverse personnel action that does not make sense. Then, you ask the employer for its explanation. Does the it make sense? We see the same analysis when the judge reviews the administration’s travel ban. There is at least one federal statute that prohibits discrimination in regard to immigration policy. He appears to have viewed the travel ban as unconstitutional, because it favors one religion over another.

The judge, James Robart, asked why did the Trump administration implement the travel ban? When Michele Bennet, the government’s lawyer, explained it was to protect the U.S. Then the question becomes, how many terrorist acts were conducted by persons from these seven countries. Her answer was she did not know. Judge Robart replied there have been none. So, there is no support for the travel ban, added the judge.

That is not good. The government’s lawyer should have some reason planned to offer the judge, something more specific than protecting the public.

That sort of answer in court just kills your case. That constitutes a judicial admission that the proponent of the ban does not know why it instituted the travel ban. This is basic discrimination analysis. If the offered reason does not hold water, then the finder of fact can conclude the true motive was an improper motive, such as discriminatory bias. Michelle Bennet could not support her preferred reason with any facts. So, her explanation failed. That allowed the judge to conclude it was an improper motive.

And, it did not help that just as the judge was reviewing these motions and briefs. Kellyanne Conway, senior adviser to the President, said on MSNBC that one of the reasons they issued the travel ban was the “massacre” in Bowling Green, Kentucky. Only there was no such massacre in Bowling Green. Ms. Conway withdrew her explanation soon afterward. But, the damage is done. When asked, your explanation is simply false, that suggests the government did not know what its reason was.

The Washington judge, a George W. Bush appointee, rightly pointed out that it is a “bit of a reach” to say that Donald Trump’s anti-Moselm statement in June, 2015 would make him anti-Moslem. One comment is not enough. But, we wonder if the judge looked at Mr. Trump, the candidate’s many anti-Moslem statements. Even so, the judge wrote that there was “overwhelming amount” of evidence that the travel ban was directed at the Moslem religion, which is unconstitutional. See CBS news report.

The judge granted the motion to issue an order enjoining or preventing the use of the travel ban. And, the next day, of course, Pres. Trump tweeted about the order. He referred to Judge Robart as this “so-called” judge. The White Hosue issued a statement about the order referring to the judge’s order as “outrageous.” Soon after, the White House issued a new statement omitting the word “outrageous.”¬†Judges are supposed to be above personal comments. but is is very unwise for any litigant to disparage the judge hearing your case. That is Litigation 101.