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The Trump Factor: Trump Refers To Immigration Order As “Travel Ban” During Critical Stage Of Immigration Appeal

jonathanturley

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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.”

Donald J. Trump ✔@realDonaldTrump

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!

7:17 PM – 3 Jun 2017
Once again, Trump’s words can be disregarded as casual and poorly constructed.  The immigration order is clearly not a ban of any kind and the reference probably was not a reference to Trump’s prior pledge to impose a “Muslim ban.”  Yet, during the recent litigation, the opposing counsel pointed out to the judges that the Trump campaign was still posting his pledge to impose a Muslim ban (a remarkably idiotic failure that was then embarrassingly taken down). That was less than a month ago.  In trying to get a fifth vote on the Court, it is added baggage that government counsel simply does not need.  Ironically, it makes more difficult the very thing that Trump was demanding: the reinstatement of his immigration order.
It must be incredibly frustrating for his counsel who have insisted that his references to a “Muslim ban” during the campaign are immaterial to the executive order.  It does not alter the core of the legal arguments, which I have long stated favor Trump.  However, his reference to a ban (which the order is not) undermines the thrust of the arguments raised in courts across the country.
Once again, Trump has repeatedly harmed the position of his own Administration with these poorly considered and poorly crafted statements.  It is not clear if anyone in his inner circle (particularly his White House Counsel) have explained how damaging these statements can be for the Administration.  His own words have repeatedly emerged as the critical factors in these controversies.  It is like facing a continual Perry Mason moment with clients jumping up in court to incriminate themselves.  Presidents are usually highly circumspect in discussing issues in litigation precisely to avoid the problem that continues to undermine the Trump Administration.
I realize that President Trump values Twitter as a way to speaking directly to the American people. I do not fault him for that.  However, these statements are now routinely harming the position of his Administration on critically important issues.  With the Justice Department asking for a difficult emergency order against the Fourth Circuit, this type of conflicting statement can influence marginal votes on the Court.  After all, the Justice Department is insisting that this is not a ban of any kind but a measured order imposing added security precautions for a small number of countries.   Lower court judges however have insisted that Trump is saying diametrically opposing things outside of the Court and that representations of counsel in court cannot be taken at their face value due to his prior statements.  To continue to make conflicting statements on the very eve of a decision from the Court on the preliminary injunction is obviously self-defeating.  I do not believe that this tweet should alter the analysis, but Trump could not be working harder against his own case.
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