Legal experts were taken back by the level of potential self-sabotage that President Donald Trump committed by tweeting extensively Monday about the controversial travel ban currently blocked by the courts.
Trump, following the London terror attacks over the weekend, tweeted on Monday: “I am calling it what we need and what it is, a TRAVEL BAN!” He then took aim at his own Justice Department, saying it “should have stayed with the original Travel Ban, not the watered down, politically correct version” it will likely soon be arguing in favour of before the Supreme Court.
He also tweeted that the DOJ “should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court — & seek much tougher version!” And he called the judicial system “slow and political.”
Both supporters and opponents of the president’s travel ban were stunned by what they saw as comments that could hurt the DOJ’s defence of the executive order.
Neal Katyal, the former acting solicitor general arguing against the ban in court, tweeted a screenshot of Trump’s Monday morning tweets, commenting that it’s “kinda odd to have the defendant in Hawaii v. Trump acting as our co-counsel. We don’t need the help but will take it!” Ryan Goodman, a former Department of Defence lawyer in President Barack Obama’s administration, said the tweet calling the second order “watered down” showed Trump’s “unconstitutional intent.”
And Jack Goldsmith, a lawyer in President George W. Bush’s administration, Harvard law professor, and cofounder of Lawfare, highlighted a point he made in February after Trump took aim at the judges presiding over travel ban litigation. Goldsmith wrote then that Trump might be intentionally weakening his case to set “the scene to blame judges after an attack that has any conceivable connection to immigration.”
“If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls,” Goldsmith wrote. “This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack.”
Perhaps the most surprising reaction came from George Conway, a prominent lawyer who is married to top Trump adviser Kellyanne Conway.
The lawyer, who withdrew himself from consideration for a top Justice Department job, tweeted that Trump’s statements “may make some [people] feel better, but they certainly won’t help” the solicitor general’s office get a majority decision in the Supreme Court, “which is what actually matters.”
“Sad,” he added.
He then launched into a tweetstorm explaining his views and clarifying that he “VERY, VERY STRONGLY” supports Trump, his administration, policies, the executive order itself, “and of course, my wonderful wife.” But he seemed to plead with Trump to stop tweeting about the ban.
“Every sensible lawyer in [the White House Counsel’s office] and every political appointee at DOJ [would] agree with me (as some have already told me). The [point] cannot be stressed enough that tweets on legal matters seriously undermine Admin agenda and POTUS — and those who support him, as I do, need to reinforce that [point] and not be shy about it.”
Trump didn’t seem to follow that advice, tweeting again about the executive order later Monday night.
“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” he said.
Renowned lawyer and Harvard professor Alan Dershowitz told Business Insider on Tuesday that Trump’s continued persistence in going against the wishes of his own legal team is an experience Dershowitz has had “over and over again with clients.”
“You tell them not to talk to the press, you tell them not to call somebody and talk to them, they do,” he said. “When you have a powerful person — I represent many powerful people — they don’t listen to their lawyers. They think that they know a lot.”
Dershowitz said it’s clear Trump believes his tweeting was at a major reason for his electoral victory in November, and he’s loathe to abandon the habit. Indeed, on Tuesday morning, Trump tweeted that “the FAKE MSM” was “working so hard trying to get me not to use Social Media.”
“I think there is a sense that he got where he got by tweeting,” Dershowitz said. “And how dare his lawyers tell him not to. They’re just too cautious and too watery and he’s going to do his own thing.”
“And then of course …. the clients go ‘why didn’t you stop me! Why didn’t you stop me from doing that. Why didn’t you tell me not to!'” Dershowitz said. “So I think it’s a situation where the most powerful person in the world is not going to be told what to do by his lawyers.”
The revised travel ban bars citizens from Sudan, Iran, Somalia, Yemen, Syria, and Libya who do not currently have visas from entering the country for 90 days while the administration reviews its visa policies. It also bars all refugee entry for 120 days. It has been blocked by federal courts, and the Trump administration has appealed to the Supreme Court.
In upholding a nationwide block on the order, the 4th US Circuit Court of Appeals said the executive order “drips with religious intolerance, animus, and discrimination.”
The Trump administration had withdrawn its initial travel ban — which did not make clear that existing visa holders could enter the country and also included Iraq on the list of banned countries — after it too was blocked by the courts.
Trump’s tweets point in a different direction than what his own DOJ lawyers argued in the case, as the Justice Department has tried to distance itself from the original order in defending the new one. Trump has already seen his past statements, and those of his surrogates, used against him in court, particularly his December 2015 call for a temporary suspension of Muslims entering the US.
The Justice Department lawyers defending the order have repeatedly called for Trump’s statements not to be considered when ruling on its legality, instead asking the judges to focus on the text of the document. But that strategy has not proven effective yet, as the courts have taken Trump’s statements into consideration.
Additionally, the lawyers have tried to create distance between the first executive order and the one that replaced it, which likely wasn’t helped by Trump’s tweets about its “watered-down” nature.
But Dershowitz said he believes the latest tweets won’t be a detriment to a Supreme Court case — namely because he didn’t write the following two words: “Muslim ban.” He believes that Trump’s statements should not be considered in evaluating the executive order. If Trump’s statements are the reason for the travel ban being ruled unconstitutional, Dershowitz said that creates a scenario where a future president can present the exact same document and have it deemed legal if that leader did not use the same language in relation to the order.
“You can’t judge a statute by what people say about it,” he said. “You have to judge it by its words. And I think the Supreme Court will ultimately come to realise that.”
“But, Trump’s not helping,” he added.
And as it’s become apparent to Dershowitz, Trump’s team is desperately trying to get him to stop shooting himself in the foot.
“I think there are people in the White House — wouldn’t be surprised if [Kellyanne] Conway is one of them — who are trying everything to try and get him to stop tweeting,” he said, pointing to George Conway’s message as one “that gets to him.”
“At least one would think so,” he added. “Because they have to be trying their best to stop this. And so far, they haven’t succeeded.”
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