Trump’s tweets and the travel ban case

I agree with Scott that President Trump’s tweet attacking his Justice Department was disheartening. It shows Trump at his worst — trashing his own team and refusing to accept responsibility for his actions. He was the one who signed the “watered down, politically correct” executive order.

From a lawyers’ perspective, Trump is the client from hell — a point made, though not in these words, by Alan Dershowitz and David Rivkin in this New York Times article. He’s not just the client who trashes his lawyers after a bad, but not decisive, day in court. He’s the client who wants a private meeting with the judge to “explain” things. This tendency may well have been on display in his encounters with former FBI director James Comey. (We’ll know more when Comey testifies on Thursday).

I don’t believe, however, that Trump’s tweeting undermines the case for upholding the travel ban. We know that judges — including, I suspect, Supreme Court Justices — will seize on anything to resist this president. So it’s quite possible that several Justices will seize on his latest tweets. Nor can I rule out the possibility that Justice Kennedy, whose vote will likely be decisive, might do so (if the case is decided on the merits).

But nothing in the president’s tweets justifies striking down the order. The tweets call the order a “travel ban.” That’s what it is. It bans entry into the United States from six countries.

The ban is temporary, to be sure. But Trump’s tweets don’t say otherwise. Nor could a characterization in a tweet change the ban contained in the executive order from temporary to permanent.

Trump also said “the Justice Department should have stayed with the original,” broader ban “not the watered down, politically correct version they submitted to Supreme Court.” This shows that Trump believes the original ban was better policy and legally sustainable. But the original ban is not before the Supreme Court. Trump’s beliefs about it are not relevant to the case.

Trump’s tweets show that he backed away, against his better judgment, from a comparatively draconian ban in favor of a milder one. In a properly functioning legal system, this would not be a cognizable argument against the milder ban. In a legal system that entertains such an argument, this president doesn’t stand much of a chance, tweet or no tweet.

This story, in which the Washington Post claims that “Trump’s latest tweets will probably hurt effort to restore travel ban” is full of snarky, triumphal quotes from opponents of the ban in support of the Post’s thesis. But it is lacking in legal analysis.

The Post quotes an ACLU lawyer who says “this stuff seems relevant” because it amounts to a promise “let me do this and I’ll take it as license to do even worse.” This theory has never, to my knowledge, formed the basis for striking down executive action. Moreover, one could just as easily infer that upholding the “politically correct” ban would encourage Trump to listen to his lawyers when they urge restraint.

Post reporter Matt Zapotosky suggests that Trump’s tweets will strengthen the case that the new travel ban has the same purpose as the original. It does: to protect America from terrorism. Nothing in the tweets suggests that either the original or the revised ban has a discriminatory purpose. As was the case pre-tweets, opponents must rely on campaign rhetoric to make the discrimination case.

This Wall Street Journal editorial claims that the president’s tweets “sabotage the legitimate legal basis for the travel ban.” It says the president “has given liberal judges Twitter evidence to conclude that his motives may be suspect.”

The Twitter evidence is that Trump would like to go further than he did to limit travel. The Twitter evidence is that Department of Justice lawyers reined him in.

It would be unprecedented, I think, for the Supreme Court to strike down an act of the president (or of Congress) because in his heart of hearts he would like to have gone further than he did. And, as I suggested above, a Court that would act in such an unprecedented way doesn’t need Twitter evidence.


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