One of the strangest aspects of the troubled start to the Trump Administration has been the role played by Trump’s own words in tweets and interviews. In both litigation and political settings, Trump’s own words have become the greatest liability for the Administration — undercutting allies and unraveling defenses. In the immigration order litigation, his controversial campaign statements have been repeatedly used as the determinative factor against his Administration in both the first and second rounds of litigation. His statements to the Russians and then his rather odd denial in Israel threw his Administration into downward spirals. Now we may see the creation of new precedent entirely due to Trump’s continued unguarded and unwise statements. Trump’s statements in interviews are the primary reason for the appointment of the Special Counsel after he directly contradicted his own staff on the reasons for the Comey termination. Recently, after the London attack, his Twitter statements caused an understandable outcry in Britain after he first tried to use the attack to argue for his immigration order and then attacked London’s mayor by misconstruing the mayor’s statement to the public. It is an incredible record. Absent these unguarded and ill-considered statements, Trump’s Administration would be in a far better legal and political position.
While the London tweets have been discussed primarily for their highly negative impact on people in Great Britain (of all parties), one tweet is equally problematic from a legal perspective. In his controversial tweet, Trump referred to his immigration order as a “Travel ban” — precisely what his lawyers have worked so hard to avoid before the Ninth and Fourth Circuits. As with his Comey comments, he is using the very language that his critics most wanted him to use. It is another example of sending months and hundreds of pages of argument only to be stymied by a mere 140 words.
Saturday evening, Trump called for the reinstatement of his “Travel Ban” on Twitter as an “extra level of safety.” His tweet said “We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel ban as an extra level of safety.”